Kowalke v. Schindler

Eschweiler, J. No claim was made in the complaint, on the trial, or is here that there was any gross or wanton negligence by defendant responsible for plaintiff’s injury. The complaint relied upon the alleged negligence of allowing and permitting the dynamite caps to be in and about said stove and subject to be discovered by., children accustomed to play upon said premises. We can find no legal basis upon which responsibility for this unfortunate accident can be placed upon defendant, and the trial court was right in so determining. The plaintiff and his two companions were attracted to go upon defendant’s premises because'-of the pool of water with the raft, and for such condition' the defendant is in no wise to be held responsible, for he had no knowledge of the existence of such pool or of the raft thereon until after the plaintiff had been there. In so securely storing the caps within the stove there was no violation by defendant of any statute or ordinance forbidding, under penalty, such an act, with the possible consequent prima facie presumption of negligence. An attempt was made to come within such a theory by asking to have received as part of thé plaintiff’s case, although not set forth in the complaint, or by any offer to amend, an ordinance claimed to be in force in the city of Appleton at the time, providing in effect that no person shall fire or discharge' any firearm or explode or set off any explosive materials within the city limits without permission, and a violation whereof subjects the party to a fine of not more than ten dollars or not more than ten days’ imprisonment in the county jail; . . ■Whatever might be the possible effect of such an ordinance* were it conceded to be valid and within the power of the common council to enact, there was clearly here no permis [178] sible application of it under the facts in this case. It was limited by its very terms to the use of explosives as distinguished from their storage, such storage being the'act upon which defendant’s negligence was attempted to be predicated. We can find no statute which prohibits that which was done by the defendant in this case. It comes within none of the numerous provisions in ch. 167 as to the safeguards of persons and property, such for instance as secs. 167.01, 167.02, 167.03, and 167.04, Stats., prohibiting the manufac-turé of powder within corporate limits; the storage of explosives within a mile of a powder factory; the storage of powder by manufacturers, or within a specified distance from a dwelling. Sec. 167.07 in the same chapter elaborately and specifically regulates the subject of the storing and distribution of matches, a seemingly far more dangerous possibility, but no prohibitive or regulatory provisions can be found for such dynamite caps. In none of the criminal statutes as to the discharge, transportation, making or selling of dynamite or other explosives, or of fireworks or firecrackers containing dynamite or other explosives, and covered by such sections as 340.62, 340.64, 340.73, and 340.78, Stats., or in sec. 343.131, as to the possession of tools or explosives used or intended to be used to aid in burglary, can there be construed any legislative declaration that that which the defendant did here was intended to be forbidden, or subjected to specific regulation. Much reliance is placed by plaintiff upon the case of O’Brien v. Fred Kroner H. Co. 175 Wis. 238, 185 N. W. 205, where a complaint-was held to state a cause of action oh behalf of a thirteen-year-old boy injured by the explosion-of a dynamite cap claimed to have been placed by defendant in .a public alley adjacent to its premises and known by it to be used by children for play. The situation'here is so manifestly different that it cannot1 support the plaintiff’s contention. Here the article was lawfully stored by defendant [179] on his own premises, and there is no proof that he knew that children were frequenters of such property, and he owed no other duty to the plaintiff under the facts of this case than to refrain from wilful or intentional injury. Routt v. Look, 180 Wis. 1, 18, 191 N. W. 557; Borgnis v. California Oregon P. Co. (Cal. App.) 258 Pac. 394; Branan v. Wimsatt, 298 Fed. 835, 36 A. L. R. 14; Martino v. Rotondi, 91 W. Va. 482, 113 S. E. 760, 36 A. L. R. 6; Fitzpatrick v. Rose Donahue R. Co. 151 Minn. 128, 186 N. W. 141, 36 A. L. R. 20. That liability may be incurred by one negligently leaving an explosive on the highway so as to be accessible to persons lawfully there, or where left in a place where children are known to play, is dwelt upon in such recent cases as Eves v. Littig Const. Co. 202 Iowa, 1338, 212 N. W. 154; Sedita v. Steinberg, 105 Conn. 1, 134 Atl. 243, 49 A. L. R. 154, with note at p. 160; Depew v. Kilgore, 117 Okla. 263, 246 Pac. 606. See, also, note in 43 A. L. R. 434. But no case is cited and we find none which supports plaintiff’s contention, nor do we feel that the logic of the opinions or of the general doctrines of liability in tort permit a recovery against the defendant in this case. By the Court. — Judgment affirmed.