Luttrell ex rel. Butler v. Carolina Mineral Co.

WiNBORNE, J.

Considering the evidence on this appeal in the light most favorable to plaintiffs, and giving to them the benefit of every reasonable inference therefrom, we find no error in the judgment below— the challenge to the correctness of which constitutes in the main the debate on the appeal.

The question: Is there evidence of actionable negligence sufficient to take the case to the jury?

In an action for recovery of damages for injury resulting from actionable negligence the plaintiff must show: (1) That there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed; and (2) That such negligent breach of duty was the proximate cause of the injury, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under the facts as they existed. Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326; Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661; Mitchell v. Melts, post, 793. See, also, Stephens v. Lumber Co., 191 N. C., 23, 131 S. E., 314.

If the evidence failed to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Mitchell v. Melts, supra.

Also, the principle prevails in this State that what is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist. “This rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause.” Hoke, J., in Hicks v. Mfg. Co., 138 N. C., 319, 50 S. E., 703; Russell v. R. R., 118 N. C., 1098, 24 S. E., 512; Glinard v. Electric Co., 192 N. C., 736, 136 S. E., 1; Murray v. R. R., supra; Reeves v. Staley, ante, 573.

In Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1, Clarkson, J., said: “It is well settled that where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not.”

Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit, “1. When all the evidence taken in the light most favorable to the plaintiff, fails to show any actionable negligence on the part of the defendant ... 2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person . . .” Smith v. Sink, 211 N. C., 725, 192 S. E., 108, and cases cited. See, also, Boyd v. R. R., 200 N. C., 324, 156 S. E., 507; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Butner v. Spease, 217 N. C., 82, 6 S. E. (2d), 808; Murray v. R. R., supra.

“Tbe degree of care required of persons having the possession and control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost caution must be used in their care and custody, to the end that harm may not come to others upon coming in contact with them. The degree of care must be commensurate with the dangerous character of the article.” Mattson v. R. R., 95 Minn., 477, 70 L. R. A., 503, approved in Brittingham v. Stadiem, 151 N. C., 299, 66 S. E., 128; Wood v. McCabe, 151 N. C., 457, 66 S. E., 433, and to like effect in Barnett v. Mills, 167 N. C., 576, 83 S. E., 826; Krachanake v. Mfg. Co., 175 N. C., 435, 95 S. E., 851; Stephens v. Lumber Co., supra.

Though the extent of the precautions which a reasonably prudent person would take to avoid injury in the case of a child is affected by the child’s appreciation of the danger incident to the handling of explosives, and hence, liability may exist in the case of a child of tender years which would not exist in the case of a child of more mature years, it is well settled that one who keeps or uses explosives owes a duty, especially to young children who cannot be expected to know and appreciate the danger, to exercise care commensurate with the danger to prevent injury to children who may have access to, or come in contact with, explosives. Thus it has been broadly stated that it is a breach of duty to leave or to store explosives accessible to children who are lawfully on the premises — or whose presence there should be anticipated. 22 Amer. Jur., 139. See, also, Annotations in 43 A. L. R., 435, 49 A. L. R., 160, and 100 A. L. R., 452.

In the present case there is no allegation or evidence of the existence of any relation between Robert Luttrell and defendant, out of which any peculiar duty arose with respect to conditions in the building where the dynamite caps were stored, as would be in the case of master and servant. The dynamite caps were used by defendant as a legitimate agency in the prosecution of the lawful business of mining in the mountains of Mitchell County. They were stored in a tin box on an elevated shelf of a cupboard placed in the rear of the third floor of a mountain side building in use by defendant in carrying on its mining business, except on Sundays. The defendant had the right to store dynamite caps in such building on its own land. But in view of the explosive nature of dynamite caps it owed a duty to children, who might lawfully go into the building where the dynamite caps were stored, or whom it might reasonably anticipate would do so, to exercise commensurate care in protecting them from exposure to dangers incident to the dynamite caps when improperly handled. Hence, if defendant knew, or was charged with implied knowledge, that children were in the habit of playing in and around the building, the question as to whether it had properly safeguarded the dynamite caps would ordinarily be a question for the jury. But where the evi•dence shows that defendant had no actual knowledge that children were in the habit of playing around the building, and where the evidence fails to show that children so habitually played in and around the building, as to charge defendant with knowledge of their usual presence on the premises, it is not charged with duty of anticipating that children ivould trespass upon its premises, and take and carry away dynamite caps.

'While in the case in hand there is evidence that plaintiff and other children were in the habit of playing around the building on Sundays, and that some of them on a few occasions had gone into the building, the evidence is insufficient to show that defendant had actual or implied knowledge of such habit. The only evidence is that when on one Sunday the manager in charge of the work and of the building came to the mine Ed Hice and other boys were on the dump pile on the outside of the building. This is insufficient, as a matter of law, to charge defendant with knowledge that children were in the habit of playing there. Therefore, defendant is not negligent in failing to anticipate invasion of its building by children, who had no right to enter. And, while the place from which the dynamite caps were taken indicates caution and circumspection in storing them, it is immaterial whether defendant had properly safeguarded them.

But if it be conceded that there is evidence of negligence on the part of defendant in storing dynamite caps in the manner and under the circumstances shown in the evidence, was such negligence the proximate cause of the injury to plaintiff, Eobert Luttrell ?

The answer is “No,” as in Stephens v. Lumber Co., supra.

The injury to plaintiff here, as there, did not occur in defendant’s building, while he and the other boys were in the act of taking the dynamite caps here, powder there, but here it occurred after plaintiff had carried them down the road for division with the others, and had divided them, and after he had carried a part of them home and kept them all night, and not then until he undertook to remove the contents of one of them by picking in it with a pin. The explosion of the cap was not caused by any act of omission or commission of defendant. Too, it was the explosion of the cap and not its presence in the defendant’s building, or -in the manner in which it was stored, that caused the injury. If the cap had remained in the box on the shelf of the cupboard in the back of the building on the third floor, where defendant had stored it, and where defendant reasonably contemplated it would remain, no harm would have come to plaintiff. Further, if plaintiff, Eobert Lut-trell, had been an adult, no contention could or would be made that his injury was caused by act of defendant, or that defendant is liable to him therefor. His injury was due to his own wrongful act in taking and carrying away the dynamite caps, and to his own carelessness in picking into tbe cap with a pin. Hence, if defendant were negligent in storing tbe dynamite caps in tbe building, tbe connection between sucb act on tbe part of defendant and the injury to plaintiff was broken by an intervening cause, to wit, tbe act of plaintiff. Therefore, unless it can be held that tbe plaintiff, Bobert Luttrell, by reason of bis age, cannot be held in law responsible for bis acts in taking tbe dynamite cap and exploding it, plaintiffs’ contention that tbe negligence of defendant, if sucb be conceded, was tbe proximate cause of tbe injury to Bobert Lut-trell, cannot be sustained.

While Bobert Luttrell says that be did not know that a dynamite cap would explode when its contents were picked with a pin, tbe evidence manifests bis knowledge of tbe dangerous nature of dynamite caps, and bis familiarity with their use. Furthermore, tbe evidence shows him to be at least of average size and intelligence for a boy of bis age — not quite thirteen years. Tbe evidence shows him to be of such age and intelligence as to know and understand that tbe dynamite caps did not belong to him, and, even though be says that be did not think of it at tbe time, be admits that be knew it was wrong to take property of others, and to appropriate it to bis own use.

“Notwithstanding tbe fact that tbe person injured is a child, nevertheless, to impose liability, defendant’s act must have been tbe proximate cause of tbe injury. So where explosives are wrongfully carried away from tbe place in which they are stored, by children capable of understanding tbe wrongful nature of their act, tbe negligence in keeping or storing cannot be regarded as tbe proximate cause of a subsequent injury to tbe child or other children by their use, where defendant has done nothing to invite or provoke tbe act of tbe child and there is nothing in tbe circumstances which would cause it to be foreseen. 25 C. J., 187,” quoted in Stephens v. Lumber Co., supra, where cases are cited. Sucb is tbe case in band.

Other assignments are found to be without merit.

Tbe judgment below is

Affirmed.

ClaRksoN, J., not sitting.