Mathews v. City of Albany , 36 Cal. App. 2d 147 ( 1939 )

NOURSE, P. J.

A judgment of nonsuit was entered in favor of defendants in an action by plaintiff, an infant of about twelve years of age, for personal injuries.

On July 4, 1936, a fireworks display was conducted upon property leased by the City of Albany for playground purposes. The city purchased the fireworks from a local hardware company which furnished a man who discharged them at a public celebration on the night of the Fourth. The following day, a Sunday, several children found unexploded fireworks on the premises, which they carried away. The plaintiff found an unexploded bomb. He opened it and poured the powder into an empty container. He found an empty “shell” which had been shot off the night before. He poured the powder into an empty container. He found an exploded bomb which he opened. He poured this powder into his “shell”, took it home, and placing it in his back yard, set a match to the open powder. Injuries to his eyes resulted from the ignition of this powder.

The appellant has raised a number of objections to the order granting a nonsuit, but they all fall before the unimpeached testimony of his own witnesses which discloses his contributory negligence as a matter of law. His own testimony shows that he had played with fireworks for a number of years; knew that when he lit loose powder it would either burn or explode; knew that there were two kinds of powder used in fireworks—one which would merely burn when ignited, the other which would explode; had been specially warned that the “bombs” used at the park on the previous night were dangerous and knew that they were of the bind that would explode; and thus knew that when he ignited the powder which he had placed in the container it would cause an explosion. The evidence is that he was a boy of normal mental and physical capacity, but one having more than normal knowledge and experience of and with explosives.

The case is controlled by Bolar v. Maxwell Hardware Co., 205 Cal. 396, 401 [271 Pac. 97, 60 A. L. R. 429], where a number of eases to the same purport are cited. The accepted rule is that a minor is bound to exercise the intelligence with which he is endowed, that upon his discovery of perils he must exercise such care to avoid injury as may fairly and reasonably be expected from persons of his age and physical and mental capacity. (20 R. C. L., p. 125.) And, where the capacity and intelligence of the child are not controverted, the court may determine, as matter of law, whether the particular act is such as would be performed by one of his age, capacity, and intelligence. (Studer v. Southern Pac. Co., 121 Cal. 400, 404 [53 Pac. 942, 66 Am. St. Rep. 39].)

The judgment is affirmed.

Sturtevant, J., and Spence, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on January 17, 1940, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 15, 1940. Carter, J., voted for a hearing, and filed the following opinion: