Travell v. Bannerman

Woodward, J. : The defendant seeks the reversal of the judgment below for the sum of $600 damages awarded against him by the jury, as compensation to the plaintiff for personal injuries alleged-to have been suffered by him as a result of the want of due care on the part of the defendant in managing certain premises belonging to him. The evidence tends to establish the following facts : At the time of and before the injuries in question the defendant was the owner and in possession of a gun and ammunition factory in the block bounded by Bergen street, Utica, St. Mark’s and Schenectady avenues, in the borough of Brooklyn. The factory premises were inclosed by a fence, but the adjoining lot, also owned by the defendant and casually used as a temporary dumping-place for ashes and other refuse material from the factory, was unfenced and criss-crossed by paths worn by people of the neighborhood. For a long time the plaintiff, .fourteen years of age, and other boys liad used this open lot as "a playground. On September 14, 1900, the plaintiff was standing in St. Mark’s avenue, just outside this vacant lot, when two younger boys approached him with a mass of black asphalt-like mate^ rial composed of caked gunpowder and old cannon primers. This mass, which was about a foot long, the boys had found among the rubbish on the vacant lot, and, after joining the plaintiff, they proceeded to extract the pieces of brass which it contained, In doing so, one of the boys,, not the plaintiff, pounded the lump with a rock, and an explosion resulted in which the plaintiff received the injuries which, form the basis of this action. There was sufficient evidence from which the jury could infer that the explosive material had been placed in the defendant’s lot ■by his servants; but the defendant contends that, even admitting that the facts warrant this inference, no cause of action was made out. Counsel relies upon the well-known legal principle that, for injuries caused by mere defects in the premises, the owner is not liable to a bare licensee. It is certain that the plaintiff was not what the law calls a “licensee,” for the injury occurred on the highway and the plaintiff had not on that day been on the defendant’s land. It is also almost certain that the placing of highly explosive materials in a rubbish heap, on an open lot resorted to by boys for a playground and in a thickly inhabited neighborhood, does not come — 441 — within the category of “ mere defects in the premises.” On the other hand, it would seem that the' lump of caked gunpowder and pieces of brass would fall- within the description of a dangerous and enticing machine referred to in the leading case cited by counsel for the defendant (Walsh v. Fitchburg R. R. Co., 145 N. Y. 301, 307), where the court say that the turntable was not, “ as to children of tender years, a dangerous and at the same time an enticing machine, one which, when seen, would inevitably and infallibly allure children to come upon it for the purpose of playing upon it, and that the natural and probable result of such play would be the injury of the child.” The pieces of brass were not without value as junk, and their presence in the rubbish would inevitably attract children eager to obtain a few pennies by selling what of value they might .find among the refuse. Beetz v. City of Brooklyn (10 App. Div. 382), also relied upon by the defendant, had to do with a situation quite different from the one in our present case. The alleged dangerous material there was quicklime, commonly used as building material, and this court rejected the view that it was “ as dangerous as exposed gunpowder,” the fair inference being that if it had been anything like gunpowder a different result would have been reached. In Dixon v. Bell (5 M. & S. 198) the defendant sent a young girl to bring a loaded gun, after having instructed the man who had the gun to remove the priming. The girl brought the gun, and, thinking the priming had been removed, pointed the gun at plaintiff’s son and pulled the trigger, discharging the contents of the gun and injuring the child. The defendant was held liable- for negligence in leaving the gun without withdrawing the charge. “ As by this want of care,” says Lord Ellenbobolgh, “ the instrument was left in a state capable of doing mischief, the law will hold, the defendant responsible.” In the case of Illidge v. Goodwin (5 Car. & P. 192) a horse had been left unattended in a public street. A passer-by struck him, causing him to back the cart into plaintiff’s shop window. The court, per Tendal, C. J., held that the intervention of the passer-by did not absolve the defendant from liability for leaving his horse unattended. And in Lynch v. Nurdin (1 Q. B. 29) Lord Denman says : “If I am guilty of negligence in leaving anything — 442 — dangerous in a place where I know it. to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.” For illustration, he gives the case of a gamekeeper who leaves a loaded gun against the wall of a playground, and a boy discharges it and wounds another boy. The chief justice continues : “ I think it will not be doubted that the gamekeeper must answer in damages to the wounded party.” These English authorities were cited and approved in Thomas v. Winchester (6 N. Y. 397), where a manufacturer, who had carelessly labeled a deadly poison as a harmless medicine and sold the same to a druggist, was held liable to a person who had bought the poison so labeled from the druggist and was injured without fault on her part in consequence of the false label. Judge Rugóles’ definition of proximate cause was repeated in Ryan v. N. Y. Cent. R. R. (35 N. Y. 210), a leading case on that subject, where the doctrine of Dixon v. Bell (supra) was approved, the court saying in reference to that case (p. 211) : “ The injury is a natural and ordinary result of the folly of placing a loaded gun in the hands of one ignorant of the manner of using it, and incapable of appreciating its effects.” The case of Williams v. Eady (9 Times L. Rep. 637; affd., 10 id. 41) held defendant liable for not keeping a dangerous substance out of reach of boys at school. The jury were directed that if a man keeps dangerous things he must keep them safely, and must take such precautions as a prudent man would take, and to leave such things about in the way of boys would not. be reasonable care. The Court of Appeal (Lord Esher, M. R., Lopes and Kay, L. JJ.) dismissed the appeal, Lord Esher saying that there could be no doubt that the law was correctly laid down by the judge below. Erle, C. J., in Potter v. Faulkner (1 B. & S. 805) declared that “ the law of England, in. its. care for human life, requires consummate caution in the person .who deals with dangerous weapons.” In this State it has been held that a very high degree of care is required to be exercised by all persons using firearms in the immediate' vicinity of others, no matter how lawful such use may be. — 443 — (Castle v. Duryea, 32 Barb. 480, 486; affd., 2 Keyes, 169.) If defendant had gone upon or near the highway and there exploded cartridges or fire crackers, to the injury of the plaintiff, he would have been liable. (Conklin v. Thompson, 29 Barb. 218.) Judge Cooley, in his Treatise on Torts (2d ed. p. 356), says: " Thus, leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose,, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise.” And in Powers v. Harlow (53 Mich. 507), where a boy had been injured by playing with dynamite carelessly stored, the same learned author, then chief justice, said : “ Children, wherever they go, must be expected to act upon childish instincts and impulses ;. and others who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in-their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.” Every consideration of public policy demands the exercise of a very high degree of care of those who have in their possession or control explosive material inherently dangerous to life or limb, and especially is this true in thickly settled communities. But the defendant contends that the materials in question in the case at bar were harmless until two outside agencies intervened, the boy who carried the materials from the lot to the street and the boy who struck the mass with a rock. Counsel continues with the following extraordinary statement in italics : “ In other words, it (the lump which exploded) was not dangerous until made so, not by the defendant, but by the plaintiff and his companions.” As well might he urge that the loaded gun in Dixon v. Bell (supra) was harmless until made dangerous by the pressure applied to the trigger by the child’s hand. However, the question of intervention by a responsible human agency is raised and should be met. It is a general rule that a person injured by the fault of another, without which fault the injury could not have occurred, is not to be deprived of his remedy because the fault of a stranger, not in privity with — 444 — him, also contributed to the injury; for the original negligence still remains as a culpable and direct cause of the injury, and the intervening events and agencies which may contribute to it are not to be regarded. (Lane v. Atlantic Works, 111 Mass. 136. See, also, Sheridan v. Brooklyn & Newtown R. R., 36 N. Y. 39 ; Webster v. Hudson River R. R. Co., 38 id. 260; Barrett v. Third Ave. R. R. Co., 45 id. 628, and Spooner v. Brooklyn City R. R. Co., 54 id. 230.) In the Lane ease the defendants had carelessly left standing in a public highway a truck loaded with iron. A boy, twelve years of age, called to the plaintiff, a boy of seven, to come across the street- and see him make the wheels- move, and while doing this a piece of iron fell from the truck and injured the plaintiff. The court say (p. 141): “It is immaterial whether the act of (the older boy) was mere negligence or a voluntary intermeddling. It was an act which the jury have found the defendants ought to have apprehended and provided against.” The maxim, causa próxima, non remota, spectatur, does not mean that the cause which is nearest in time or space to the result is necessarily to be regarded as the proximate cause (Vandenburgh v. Truax, 4 Den. 464; Guille v. Swan, 19 Johns. 381; Thomas v. Winchester, supra; Eckert v. Long Island R. R. Co., 43 N. Y. 502; Gibney v. State, 137 id. 1); and, as Mr. Justice Jenks has pointed out, in Trapp v. McClellan (68 App. Div. 362, 368), the f rimary cause may be the proximate cause of a disaster. It is also a well-known rule that if the concurrent or successive negligence of two persons, combined together, results in an injury to a third person, he may recover damages from either or both, and neither can successfully plead that the negligence of the other contributed to the injury. (Congreve v. Morgan, 18 N. Y. 84; Colegrove v. N. Y. & New Haven and N. Y. & Harlem R. R. Cos., 20 id. 492; Barrett v. Third Ave. R. R. Co., 45 id. 628.) A case wherein the facts bear a strong resemblance to those in our present action is that of Harriman v. Railway Company (45 Ohio St. 11). The defendant for a long time had permitted the public to pass over its road at a given point, and the court held that it was bound to exercise care, having due regard to- such probable use, that it was negligence for the servants of such railroad company wantonly and needlessly to place at such point an appar — 445 — ently harmless, but in fact highly explosive and dangerous object like a signal torpedo, easily picked up and handled by children and likely to attract them. A child of nine picked up at the place in question such a torpedo, in ignorance of its dangerous character, carried it about 150 feet away, where the plaintiff, a boy of ten, and some companions were standing. While there, attempting to open the torpedo, it exploded, severely injuring the plaintiff. The court held that the negligence of the servants in placing and leaving such torpedo on the road was the proximate cause of the injury and that the defendant was liable. (See, also, Penso by Next Friend v. McCormick, 125 Ind. 116.) Walsh v. Fitchburg R. R. Co. (supra) has been so strongly urged as an authority in the case at bar that a further reference to it is perhaps necessary. In affirming a principle opposed to the United States rule (Railroad Co. v. Stout, 17 Wall. 657), the Court of Appeals are careful to limit the doctrine to the facts in the case under consideration. After distinguishing Lynch v. Nurdin, (supra) the court say (p. 312): “ In the case of this defendant, on the other hand, the turntable was on its own land, it was a proper and appropriate machine for the carrying on of its business, it was properly made and it was properly used by the defendant.” Paraphrasing the sentence immediately following the quotation, we may say that to liken a turntable case to the allurement of children by throwing gunpowder and brass primers onto a rubbish heap in a lot commonly used as a playground, is “ to lose sight of the different principles upon which the cases rest.” (See, also, the case of Knight v. Lanier, 69 App. Div. 454, where Mr. Justice Hirschberg has carefully distinguished the Walsh case.) There was sufficient evidence in the case at bar of the absence of contributory negligence on the part of the plaintiff. In view of the authorities above referred to, we think there was at least enough evidence to go to the jury upon the question whether proper care had been taken by the defendant in dumping material upon the lot in question ; and the action may be maintained on the principle that the consequences complained of naturally and directly resulted from the.careless and improper conduct of the defendant’s servants. No reversible error is revealed by our examination of the excep — 446 — tions to the admission and exclusion .of evidence. The charge fairly. stated the law governing the case, and the judgment and order should be affirmed, with costs. All concurred, except Goodrich, P. J., who read for reversal.