DocketNumber: No. 5837.
Citation Numbers: 41 P.2d 625, 55 Idaho 258
Judges: BUDGE, J.
Filed Date: 2/16/1935
Status: Precedential
Modified Date: 4/14/2017
Appellants brought this action against the Gooding Highway District to recover damages on account of injuries received and suffered by William George Miller, a minor, caused by the explosion of a dynamite cap taken by young Miller from a building owned by respondent. In this connection the facts are substantially as follows: Respondent owns and maintains a yard enclosed by a high board fence with a gate, within the corporate limits of the city of Gooding. The building entered is located in the northeast corner of the enclosure. It had two windows, both of which were some distance above the ground, and two doors, one of which locked on the inside. On September 23, 1929, William George Miller, then nine years old, *Page 261 past, and one Adrian Thomas, a boy about ten years old, were playing in the vicinity of respondent's enclosure. The gate was closed but the boys found an opening adjoining the building in the northeast corner, through which they entered. After playing around a short time, there is evidence in the record, they climbed upon a piece of machinery, then on a gravel screen and finally through the window into the building. The evidence is in conflict as to whether one of the boys threw a rock through the window, breaking the glass, before they entered. It further appears that young Miller got upon a shelf in the building, which shelf was five and one-half to seven feet above the floor, and proceeded to remove various and sundry articles from the shelf by handing them to young Thomas. Among the articles removed were dynamite caps. There is dispute in the evidence as to whether or not these dynamite caps were in a wooden box filled with sawdust or were in a tin can. After possessing themselves of the dynamite caps and a box of fuse the boys left the building, leaving the fuse near the building and within the enclosure, but carrying the caps some little distance away where they left them until the following evening. There is some evidence that an effort was made by young Miller to explode one of the caps by placing grass upon it and touching a match to the grass, and that while so engaged he was approached by a larger boy who warned him that the cap might blow up and kill him. There is also some evidence that young Miller attempted to explode one of the caps to blow up a stump. However, the possession of the caps by young Miller subsequently resulted in his picking at one of them with a wire, exploding it and seriously injuring him in and about the body and further resulting in the loss of one of his hands. There is evidence that children of the neighborhood frequently played on a pile of sand a short distance outside of respondent's enclosure and that some children of the neighborhood had played upon machinery within the enclosure, the enclosure being used, in part, for the purpose *Page 262 of storing trucks, graders and other highway machinery. There is also evidence to the effect that the gate to the enclosure was frequently left open. We have not recited all the facts and circumstances, but, we think, enough of the pertinent facts for the determination of the questions before us.
The case was tried before the court and a jury. After appellants submitted their evidence and rested, respondent moved for a nonsuit, which was granted. This appeal is from the judgment on the motion, and the court's action in this respect is the only error assigned.
The principal question presented is whether or not there was sufficient competent evidence submitted to the court and jury upon which liability could be established against respondent and in favor of appellants. In granting the motion for nonsuit the trial court's theory no doubt was that appellants had failed to make out a prima facie case and that no recovery could be had under the facts submitted, whereupon the jury was discharged from further consideration of the cause. A motion for nonsuit, being equivalent to a demurrer to the evidence, must be tested by that version of the evidence most favorable to plaintiff. The general rule would seem to be that trial courts should act cautiously and should carefully scrutinize all of the evidence before granting a motion for nonsuit. The rule announced in this jurisdiction is that: On a motion by defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. (Later v.Haywood,
"It is a well-settled rule of this court that on a motion by the defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant is deemed to have admitted all of the facts of which there is *Page 263
any evidence, and all of the facts which the evidence tends to prove, and that the evidence must be interpreted most strongly against the defendant." (Southern Idaho Conference Assn. ofSeventh Day Adventists v. Hartford F. Ins. Co.,
"A motion for nonsuit admits the truth of plaintiff's evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it." (Donovan v. Boise City,
"Upon a motion for nonsuit, all reasonable inferences must be indulged in favor of the plaintiff as to any facts which the evidence tends to establish. If there is a conflict in the evidence, or more than one inference may reasonably be drawn therefrom, then the question is for the jury. If, however, only one conclusion can be drawn, it is a matter for the court." (Scrivner v. Boise Payette Lumber Co., 46) Ida. 334,
"Reasonable minds might well differ as to whether plaintiff was contributorily negligent as charged in the answer, from the evidence herein, and therefore the motions for nonsuit and directed verdict were properly denied. (Pipher v. Carpenter,
"A plaintiff should not be nonsuited unless it appears that the evidence in his behalf, upon the most favorable construction the jury would be at liberty to give it, would not warrant a verdict for him. (Black v. Lewiston,
Appellants seek to recover in this action upon the theory that the keeping of dangerous explosives, in the instant case dynamite caps, in the place and in the manner they were kept by respondent constituted such negligence as would render respondent liable to appellants for the injuries sustained by William George Miller. Negligence, as well as the proximate cause of the injury, are questions of fact for the jury, where the facts, or the inference to be drawn therefrom, are in any degree doubtful or such that fair minded men might reach different conclusions from the facts. (Tendoy v. West,
Liability may be incurred for injuries to a child of tender years by having or leaving dangerous instrumentalities, such as high explosives, upon premises or elsewhere where they are accessible to children. (Town of Depew v. Kilgore, supra;Folsom-Morris Coal Min. Co. v. De Vork, supra; Clark v. E. I.Dupont de Nemours Powder Co., supra; Mathis v. Granger Brick Tile Co., supra; Boggess v. King County,
Since this case must be reversed, with instructions to set aside the judgment and grant a new trial, we have purposely refrained from a detailed discussion of some of the propositions of law urged by respective counsel, but have confined ourselves principally to the pertinent question here involved, namely, whether or not the court erred in granting the motion for nonsuit.
From what has been said it follows that the judgment must be reversed and new trial granted, and it is so ordered. Costs awarded to appellant.
Givens, C.J., Morgan and Holden, JJ., and Koelsch, D.J., concur.
Petition for rehearing denied. *Page 268
Union Pacific Railway Co. v. McDonald , 14 S. Ct. 619 ( 1894 )
Nelson v. McLellan , 31 Wash. 208 ( 1903 )
Mathis v. Granger Brick & Tile Co. , 85 Wash. 634 ( 1915 )
Buckeye Irrigation Co. v. Askren , 45 Ariz. 566 ( 1935 )
Hake v. DeLane , 117 Idaho 1058 ( 1990 )
Splinter v. City of Nampa , 70 Idaho 287 ( 1950 )
Julien v. Barker , 75 Idaho 413 ( 1954 )
Berland v. City of Hailey , 61 Idaho 333 ( 1940 )
Southeast SEC. Co. v. Christensen , 66 Idaho 233 ( 1945 )
Jacobson v. McMillan , 64 Idaho 351 ( 1943 )
Burt v. Blackfoot Motor Supply Co. , 67 Idaho 548 ( 1947 )
Finlayson v. Waller , 64 Idaho 618 ( 1943 )
Colwell v. Bothwell , 60 Idaho 107 ( 1939 )
Linder v. City of Payette , 64 Idaho 656 ( 1943 )
Hill v. Bice , 65 Idaho 167 ( 1943 )
Griffin v. Clark , 55 Idaho 364 ( 1935 )
Carson v. Talbot , 64 Idaho 198 ( 1942 )
Schofield v. Idaho Falls Latter Day Saints Hosp. , 90 Idaho 186 ( 1965 )