O'Brien v. Fred Kroner Hardware Co.

Eschweiler, J. It is to be gathered from the complaint that the pleader intends to charge that defendant’s negligence, if any, arises from leaving exposed on the ground near the door of defendant’s warehouse, either just within or just without the building, certain dynamite exploders or caps which were in tin containers, the containers being packed in sawdust in a wooden box; that such box was wholly exposed and accessible to children of tender years; and that such acts were “in violation of the law and statutes of the state of Wisconsin in such case made and provided — 242 — and the ordinances of the city of La Crosse, and especially section No. 4 of ordinance No. 37 of the city of La Crosse.” No statute of the state is called to our attention, nor Can we find any, which could be considered as having been violated by the defendant under the facts recited. There is nothing in secs. 4393a — 1 to 4393a — 7, Stats., inclusive, regulating the manufacture and storage of gunpowder or blasting powder; or. in sec. 4398a, prohibiting the sale or transportation of explosives for unlawful purposes, or in sec. 4398/, as to- the storage or keeping of fireworks or firecrackers containing dynamite or other high explosives, that can be deemed in any way applicable to the present situation. It is also evident that the ordinance of the city of La Crosse upon which plaintiff appears to rely is not sufficiently or wel] pleaded. The portion recited in the complaint and quoted supra shows on its face that sec. 3 of such ordinance is necessary to be known or shown in determining what is or what is not forbidden by the ordinance. For default of proper pleading thereof the court cannot take judicial notice of such ordinance. State ex rel. Leiser v. Koch, 138 Wis. 27, 29, 119 N. W. 839; Jones, Evidence (2d ed.) § 116. In order to sustain the complaint, therefore, as stating a cause of action against the defendant, it must appear therefrom that there was a breach by defendant of some common-law duty or obligation resting upon it towards the unfortunate boy whose distressing and untimely death is the reason for the bringing of this action. It is extremely difficult from the language of the complaint to ascertain whether the pleader intended to allege that the wooden box holding the tin containers with the explosives was placed inside or outside of defendant’s storage or warehouse building. The complaint as a whole, with its minute description of the condition of the building not only on the first but on the second floor, with the door in the rear left open and the windows on both floors broken, would strongly indicate that the pleader intended to charge negligence in — 243 — leaving such dangerous articles within such a dilapidated building open and accessible to children playing in the alley or the adjacent open space in the rear of such building, for it is evident that were they stored outside and in the vacant space of fifty feet in the rear and adjoining the alley, then the condition of the building itself would be entirely immaterial. In the memorandum filed by the trial court in disposing of the demurrer he does not state his conclusion on such question, merely stating that the negligence consists in leaving the articles on the premises of the defendant, which statement of course would be equally correct if it referred to the storage on defendant's lot and either within or without the building. The appellant construes the complaint to allege that the box was stored within; the respondent, that the box was placed outside of the building. Under the liberal rule that has been adopted and is being followed by this court in the construction of pleadings (Herrem v. Konz, 165 Wis. 574, 162 N. W. 654), we shall assume for. the present disposition of this case that it was intended by the pleader to charge that the wooden box in question in which were stored the dynamite exploders was outside of the walls of such warehouse and on the ground in the rear of the building but upon the fifty feet of vacant lot between the adjacent alley and the rear of such building. Any question, therefore, as to what might be defendant’s obligations or liabilities if, as a matter of fact, the box with the exploders was stored inside the four walls of defendant’s building, is not passed upon on this appeal and we shall not express any opinion thereon. The thirteen-year-old boy, Adena, being under the age of fourteen, was within the period of life during which the common law, still unchanged in this state, has declared he' is entitled to the presumption that there is a want of sufficient understanding or mental capacity to form a criminal intent — the necessary and essential element which must be found to exist before a conviction can be properly had of — 244 — one prosecuted for a breach of the penal statutes as to such offenses as larceny. Up to the age of seven years the presumption is conclusive; from then on it is a diminishing one until it disappears at the age of fourteen.. During the period between seven and fourteen, “the dubious stage of discretion” (4 Bl. Comm. 223), it is rebuttable, and the state must overcome it in criminal prosecutions by evidence which satisfies beyond a reasonable doubt, the test being not only whether the child so charged appreciates the morál difference between right and wrong, but also that the act in question in any particular case is a violation of the law. 22 Cyc. 623; 14 Ruling Case Law, p. 264; Comm. v. Mead, 10 Allen (92 Mass.) 398; Allen v. U. S. 150 U. S. 551, 558, 14 Sup. Ct. 196; State v. Yeargan, 117 N. C. 706, 23 S. E. 153, 36 L. R. A. 196. The same presumption exists as to wilful trespass. Folsom-Morris C. M. Co. v. De Vork, 61 Okla. 75, 160 Pac. 64, L. R. A. 1917A, 1290. In such a civil action as this, undoubtedly, the rule would be that the presumption here indulged in need not be overcome, as in criminal prosecutions, beyond a reasonable doubt, but only by the lower degree of proof, that is, such as will overcome the weight of thp presumption by a clear and satisfactory preponderance of the evidence, but more, of course, than the mere fair preponderance — the requirement as to the usual issues of fact in civil cases. Poertner v. Poertner, 66 Wis. 644, 647, 29 N. W. 386; Peterson v. Lemke, 159 Wis. 353, 355, 150 N. W. 481; Murphy v. Estate of Skinner, 160 Wis. 554, 563, 152 N. W. 172; Jones, Evidence (2d ed.) § 195. It must therefore be assumed in the present disposition of this case that there was no criminal intent on the part of the boy Adena of violating any penal statute in removing the tin containers from the wooden box. This therefore makes it unnecessary to determine what are the liabilities or obligations of one situated as was the defendant here towards — 245 — another who is subsequently injured after feloniously taking the personal property of such a defendant, and on such a question we express no opinion here. Assuming, therefore, the absence of any felonious taking by the boy, that the wooden box of containers and exploders was stored by defendant, knowing their dangerous nature, outside of the building and in an open space upon defendant’s own premises' but adjacent tb a public alley, in which space and alley, to defendant’s knowledge, children were accustomed to gather and play, and further that these articles were so taken by the boy in a spirit of play and as a plaything, and that such exposure of such dangerous articles was the proximate cause of the distressing death which followed, we hold that the complaint sufficiently states a cause of action, and that the ruling of the trial court to that effect was proper and must be upheld under such decisions as Herrem v. Konz, 165 Wis. 574, 162 N. W. 654, and cases there cited. A number of decisions from other jurisdictions have been examined on this question of the liability of one who stores or exposes such explosive substances at a place accessible to and frequented by children. Many will be found in a note to Folsom-Morris C. M. Co. v. De Vork, 61 Okla. 75, 160 Pac. 64, as given in L. R. A. 1917A, 1295. In the last cited case a.defendant was held liable for á resulting injury from lighting a train of powder which had been' scattered by children from cans containing small amounts of powder and left upon defendant’s premises where the accident occurred. In Perry v. Rochester L. Co. 219 N. Y. 60, 113 N. E. 529, L. R. A. 1917B, 1058, it was held there was no liability by one who, in violation of an ordinance, stored a chest Containing nitroglycerine caps on public lands in a city where two boys, thirteen ánd twelve years old respectively, took some of the caps away from that place and, hiding them for the night, used them the following day with a resulting explosion causing the death of a third childbut, as was there — 246 — indicated, the evidence showed that the original taking away was for profit and not for play and was in the nature of a theft p that the remoteness of time and space was an important element in the court’s holding that such result was not within the field of reasonable anticipation, and therefore the storage was not the proximate cause of the injury within the meaning of the law. That case approves of the rule given in two Massachusetts cases: Horan v. Watertown, 217 Mass. 185, 104 N. E. 464, holding a town not liable for personal injuries caused'by the explosion of dynamite by boys who had taken it from a tool chest which the employees of the town had left unwatched and unguarded on the highway, the ruling being based upon the ground that the defendant was not bound to anticipate the theft of such article and its subsequent use in play; and Jacobs v. N. Y., N. H. & H. R. Co. 212 Mass, 96, 98 N. E. 688, where the injury occurred by tiñe explosion of a signal torpedo ten days after it had been carried away by the iptestate’s companions, again on the ground that such was not within the field of reasonable anticipation. Also Afflick v. Bates, 21 R. I. 281, 43 Atl. 539, which held that there was no liability on the part of the city where explosive caps were kept in a large tool chest on a vacant lot, some of the caps being found on the ground by two boys nine and eleven years old and taken by them and given to another boy aged fourteen, who in playing with them injured the infant plaintiff, the ruling being based either on the ground that the city was not bound to guard against the mischievous and unlawful acts of the persons who originally removed the caps, or that the carelessness of the boy in exploding them was an intervening cause. Hall v. N. Y. Tel. Co. 214 N. Y. 49, 108 N. E. 182, holds that no liability could be maintained against defendant whose servants used denatured alcohol, a poison, and left a bottle of such fluid standing by the roadside, where the plaintiff, aged nine, and the brother, seven years of age, took the — 247 — bottle home, poured some of the contents on the grass and the younger brother set fire to it and the plaintiff was burned, because the facts did not show a condition within the field of reasonable anticipation. There are cases in which the defendant was held not liable because there was some substantial interval of time and space intervening the taking away of the dangerous explosive and the explosion itself, such as Carpenter v. Miller & Son, 232 Pa. St. 362, 81 Atl. 439, 36 L. R. A. n. s. 932; Bennett v. Odell Mfg. Co. 76 N. H. 180, 8 Atl. 642. Other cases again sustain the view that liability arises even where considerable time has elapsed. Barnett v. Cliffside Mills, 167 N. C. 576, 83 S. E. 826; Mathis v. Granger B. & T. Co. 85 Wash. 634, 149 Pac. 3; Mills v. Central of Georgia R. Co. 140 Ga. 181, 78 S. E. 816. In this latter case the injury was caused to a boy eight years old by the exploding of a track torpedo picked up by a fifteen-year.-old brother not knowing of the incident danger. Juntti v. Oliver I. M. Co. 119 Minn. 518, 138 N. W. 673, 42 L. R. A. n. s. 840, where a defendant left unguarded on its premises near a public street a dangerous substance knowing that children were in the habit of using such substance by pouring water on it, and where a five-year-old child so finding and using it was injured. Eckart v. Kiel, 123 Minn. 114, 143 N. W. 122, where a defendant was held liable for leaving dynamite caps in his granary in his barn which he then sold, and sometime thereafter the buyer’s son found the same and was injured by the explosion. In the case at bar we have both remoteness of time and space from the place where the explosive was found and the place where the injury occurred. That, as a fact, may be of considerable weight in the final determination of this case by jury or court as to whether the unfortunate result here was within or without the field of reasonable anticipation; but we are not prepared to now hold upon the complaint and as a conclusion of law that it was without such field. On the — 248 — other hand, there was here no intervening act by another human agency than the boy himself, such as is held in some of the above cited cases to be such an interrupting cause as breaks the chain of causal connection between the alleged negligence and the result for which a liability is claimed. The demurrer to the complaint as we now construe it was therefore properly overruled. By the Court. — Order affirmed. Rosenberry, J., dissents.