Smith v. Smith-Peterson Company

The admitted facts being that the pit with machinery therein and large pile of fine sand greatly attracted young boys; that visits of children not only were naturally to be anticipated, but respondents actually knew children customarily visited the premises; the respondents, as the landowners, were under a legal duty to take precautions for protection of said children against danger to which they would be unwittingly exposed. Best v. Dist. of Columbia, 78 L. Ed. 635-639.

It is not conceded that the boys were trespassers, but per contra, appellant's case is bottomed upon the principle that on account of conditions in the pit making it a likely place for young boys to play, and more particularly because of respondents actually knowing children customarily visited and loitered in the premises, and respondents making no objection thereto, there was an implied invitation, and therefore such children were not trespassers.

Respondents' abandonment of the dynamite cap, as alleged, differentiates this case from those where the dangerous instrumentality is in actual and necessary use by the landowner.

We contend that any careless or negligent management of explosives which causes injury is punishable as a misdemeanor, under a Nevada statute, and therefore respondents' acts constitute negligence per se. N.C.L. sec. 10248. A landowner owes no duty to either adults or children trespassing on his premises, or to bare licensees, other than to refrain from willfully or wantonly injuring them, where attractive nuisance doctrine does not apply. Surely it could not be contended that leaving one dynamite cap in a five-acre tract of land would be such conduct as to constitute willful or wanton conduct on the part of the landowner.

The State of Nevada has never had occasion to rule upon the applicability of the doctrine of attractive nuisance. To adopt it at this late date would seem to be a mistake, inasmuch as the courts which have adopted it are now seeking by some plausible means to either distinguish or overrule their former decision.

In the absence of an allegation in the complaint that the boys who found the dynamite cap were allured to the premises by some instrumentality thereon, the complaint wholly fails to state a cause of action, even under the principles of the liberal attractive nuisance doctrine.

There are no allegations in the complaint that the two boys who found the dynamite cap were children of inferior intellect. Nor is there any allegation that such boys did not know it was wrong to go upon another's property and take therefrom such personal property as they found there. The mere conclusion of the pleader that the dynamite caps were apparently abandoned, could not supply this deficiency.

The complaint failed to show that the injuries to plaintiff's son were proximately caused by the alleged negligence of the respondents. An ordinary prudent man would not, in the ordinary course of affairs, be bound to anticipate that if he left one dynamite cap on a five-acre tract of land owned by himself, trespassing boys would come thereon, assume that he had abandoned the cap, convert it to their own use, take it from the premises, and some time later give it to another boy who would light a match to the fuse attached thereto and thereby cause an explosion and injure himself.

OPINION This controversy grows out of injuries alleged to have been suffered by appellant's minor son when a dynamite cap exploded in the boy's hand. Appellant, suing in the latter's behalf, seeks to recover the sum of $15,000 for such injuries. A demurrer to the complaint was sustained, and judgment entered thereon.

Respondents contend that the complaint does not state a cause of action, and the judgment was put on that ground.

According to the complaint, respondents, for some months prior to and on August 25, 1933, had been and were engaged in rock crushing on a five-acre tract of land owned by them, or in their possession and control, and situate partly within and partly without the corporate limits of the city of Reno. On this tract of land respondents had installed various types of machinery in a pit about 150 feet wide by about 450 feet long and 20 feet deep, excavated by them, and had carried on blasting by the use of powder, fuse, and dynamite caps. In or near the pit was a large pile of fine sand which, together with the pit, machinery, and equipment therein, greatly interested young boys who were, to the knowledge of respondents, accustomed to visit the premises and pit on nonschool days and to loiter and play thereat. About 200 feet to the north of the pit were and are situate the tracks of the main line of the Southern Pacific Company between the city of Reno and Sparks, along which tracks were paths frequented by boys and other persons walking between these points. Within 20 feet, and to the south of the pit, is the Truckee River, and to the south of the river and opposite the pit is a city dumping ground long frequented by boys residing in the neighborhood in searching for articles on the dump. A large sewer pipe forming a sort of a walkway was laid across the river by the city of Reno between the dump and the pit premises. Boys customarily crossed from the dump premises on said sewer pipe, and with the knowledge and consent of respondents entered their premises and pit without any warning or prohibition. A short distance to the north of respondent's premises and across the said railway tracks resided a large number of families, the children of which customarily visited, loitered, and played in and about the pit for periods of from fifteen minutes to an hour at a time. The pit was unenclosed, and various roads used by trucks and other vehicles led into and from said pit, and paths and walkways, customarily used by children and others, led into the pit. Respondents at all times had notice and actual knowledge of the foregoing matters.

While carrying on said blasting operations in the easterly portion of the pit on or about August 25, 1933, respondents carelessly and negligently kept and placed in the westerly portion of the pit, readily accessible to children and wholly exposed, unguarded, and unprotected, about 20 to 25 pieces of fuse about one foot in length, some burnt and some unburnt, to one of which pieces of unburnt fuse a dynamite cap had been fixed by respondents and left ready for firing. These articles lying loose, scattered and abandoned, were known to respondents to be attractive to and would arouse curiosity of children, and tended to invite and induce children of the age of the two boys hereinafter mentioned, to go upon the premises and examine the objects there lying.

No blasting operations had been carried on in the westerly portion of the pit for several weeks or more, prior to said August 25, 1933. On or about that date two boys, each of the age of 11 years, while playing in the abandoned area of the pit, picked up some fuse including the piece with the dynamite cap affixed, and carried them off respondents' premises and gave some of them, including the piece with the dynamite cap affixed, to appellant's minor son. It is alleged that the boys, in picking up and carrying the pieces of fuse away, at the time, understood and believed, and had a right to understand and believe, that respondents had no objection to children loitering and playing in the westerly portion of the pit, and that the said pieces of fuse had been by respondents' workmen wholly discarded and abandoned and of no use or value. These children, including appellant's son, had had no experience with dynamite caps and had no knowledge or appreciation of the dangerous character thereof, but understood and assumed that such dynamite cap so affixed to the fuse was intended to serve as a handle for the piece of fuse for more convenient handling and firing thereof. On September 1, 1933, appellant's minor son, while attempting to make what boys call a "sizzler" of said fuse with the dynamite cap affixed, lighted the fuse, at the time holding the cap end thereof in his right hand. The dynamite cap exploded, mangling his hand and causing other injuries.

1. Such in brief is the story of the complaint. Does it show liability? Appellant insists that it does because the pit, machinery, equipment, and sand formed a place where children were in the habit of going to loiter and play, and that respondents knowing this, and having acquiesced in it, were under the legal duty to take reasonable precautions either to prevent the further coming of children, or to refrain from leaving dangerous explosives, such as dynamite caps, lying loose and abandoned on the premises. This, we take it, is appellant's main contention, though there is language in his briefs which indicates that reliance is also had on the doctrine of an attractive nuisance. On the other hand, respondents contend that there is no duty to a trespassing child by a landowner except to refrain from willfully or wantonly injuring him. They contend, further, that if an exception to the above rule exists in a case where the trespasser is induced to go upon the premises by reason of some attraction situated thereon, that the facts alleged in the complaint do not show such a case. They contend, further, that the attractive nuisance doctrine is not sound in law and should not be adopted in this state. The two latter contentions we may dismiss from our consideration because we are satisfied that the so-called attractive nuisance doctrine declared by the supreme court of the United States and some state courts of last resort has no application to the facts of this case. This because the complaint does not allege that the two boys who picked up the fuse with the dynamite cap attached, which they gave to the boy injured by its explosion, were led to the pit by its attraction or the attraction of the instrumentality which caused the mischief.

An allegation to that effect would be essential under the authorities supporting the doctrine. Sioux City P.R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745; United Zinc Chemical Co. v. Britt, 258 U.S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A.L.R. 28; Perry v. Tonopah Mining Co. (D.C.) 13 F.2d 865; Hayko v. Colorado Utah Coal Co., 77 Colo. 143, 235 P. 373, 39 A.L.R. 482. These decisions proceed upon the ground that the attraction has to children the legal effect of an invitation.

The trial court ruled correctly in holding that the complaint does not state a cause of action on the theory of an attractive nuisance. We must determine then whether, independently of this question, the complaint shows liability. Analogies to their satisfaction are found by respondents in cases like United Zinc Chemical Co. v. Britt, supra, and Hayko v. Colorado Utah Coal Co., supra. In the former case, in which the principle of an attractive nuisance was recognized with strict limitations, it was held that "infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety." The latter case holds to the same effect.

In opposition to the doctrine of such cases appellant stresses the recent case of Best v. District of Columbia, 291 U.S. 411,54 S. Ct. 487, 78 L. Ed. 882, as a controlling authority for his contention. In that case a child of five years of age, while playing on a wharf belonging to the District of Columbia, fell through a hole in the wharf and was drowned. The action was for damages for the alleged negligence of the District. While the situation there was materially different from that revealed in United Zinc Chemical Co. v. Britt, supra, we do not think that the case is an authority for appellant's contention that, irrespective of the attractive nuisance theory, liability appears from the facts stated in the complaint. We are, however, persuaded to the conclusion that appellant's contention must be allowed.

2. The complaint shows the tract of land on which the pit was located to be situated partly within the limits of a populous city near the residences of a large number of families and unfenced; that the pit, together with the other features alleged, and its proximity to the homes of many families having children, was a likely place for children to visit and play in; that a large number of children customarily visited the pit to loiter and play therein, all within the knowledge and consent of respondents; that the blasting operations carried on there by means of dynamite, if not attended with due circumspection, made the pit a danger zone for such children. These circumstances, we think, were sufficient to give respondents reason to anticipate the presence of children in the pit and give rise to the duty of taking reasonable precautions either to prevent their coming there or obviating the danger to which they were exposed.

The rule, we think applicable, is stated by Judge Thompson in his work on the Law of Negligence, vol. 1, sec. 1030, as follows: "We come now to a class of decisions which hold the land-owner liable in damages in the case of children injured by dangerous things suffered to exist unguarded on his premises, where they are accustomed to come, with or without license. These decisions proceed on one or the other of two grounds: (1) (Attractive nuisance doctrine.) (2) That although the dangerous thing may not be what is termed an attractive nuisance — that is to say, may not have an especial attraction for children by reason of their childish instincts — yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it so as to prevent injury to them."

The rule applicable to this class is broadly stated in Shearman Redfield on the Law of Negligence, sec. 705, as follows: "The owner of land, where children are allowed or accustomed to play, particularly if it be unfenced, must use ordinary care to keep it in a safe condition, for they, being without judgment and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers and mere licensees."

With reference to explosives, the rule is thus stated in 11 R.C.L. 664: "As a general rule a person leaving exposed and unguarded on his premises an explosive which is found by trespassing children, is liable for any injuries resulting from its explosion. This rule is based on the very natural and reasonable assumption that children, wherever they go, must be expected to act upon childish instincts and impulses; and those who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If persons leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, such persons should expect that liberty to be taken."

In 45 C.J. 757, it is stated: "It is also considered that one who maintains something dangerous to children and so exposed that there is a likelihood of their coming in contact with and being injured by it, is under a duty of anticipating injury to them and taking precautions to avoid it, even though the particular thing in question does not come within the attractive nuisance rule."

In Lone Star Gas Co. v. Parsons, 159 Okla. 52, 14 P.2d 369,374, it was said: "All courts recognize the fact that explosives are instrumentalities of the most dangerous character, and that their dangers are unknown to young children, or at least insufficiently appreciated by them to prevent their natural inclination to tamper with them, causing harm, the tampering being probable because of the attractiveness due to noise or fire, or to the attractive appearance of some explosives, and their apparent use in play. * * * And the rule is that one having explosives in his possession, so far as their safe-keeping is concerned, is under a duty to exercise the highest care to avoid them coming into the hands of children and causing harm to or through them, and it is conceded in the majority of jurisdictions, and conceded in all jurisdictions that apply the doctrine of attractive nuisance, that whether the children are or are not trespassers is immaterial, if there is a reasonable probability of their presence that would create a danger of the explosives falling into their hands."

In Southwest Cotton Co. v. Clements, 25 Ariz. 124,213 P. 1005, 1009, it appeared that the employees of the defendant corporation left a dynamite cartridge lying on the ground on its premises. A 12-year-old boy, who had been going on the premises with its permission, picked up the cartridge which afterwards exploded in his hand, injuring him. The court held the defendant liable, saying: "We think under the facts in this case it made little or no difference whether the plaintiff was a trespasser, a licensee, or an invitee. It is quite clear that he was a licensee; but under the authorities he would have been entitled to a verdict even had he been a trespasser, providing he satisfied the jury the defendant left the dynamite cartridge where he found it. At all events, it may be questioned whether the rule is different, as applied to these different classes, when the injured party is a child and the instrumentality causing the injury is dynamite or other high explosive."

In Butrick v. Snyder, 236 Mich. 300, 210 N.W. 311, 313, it appeared that some dynamite caps were left by a road construction company in a tool shed situated on unfenced, unoccupied land held in private ownership, at a place about 600 feet from a schoolhouse, and about 150 feet back from a highway. The pupils attending the school had been permitted by the teacher, the year before the dynamite was used on the highway, to cross it and play on the land. In November of the following year, two boys of the school, aged 9 and 11 years, were given such permission. They went into the tool shed, the front of which was open, and discovered some dynamite caps in a box on a shelf. They did not know what they were. The older boy took the cap which injured the younger out of the box and gave it to him. At the afternoon recess, the younger boy got some matches and laid the cap on a stove in the schoolhouse and lit the end of it. An explosion followed, injuring him. It was held that the defendant construction company could not avoid liability on the ground that the plaintiff was a trespasser. In the course of its opinion, the court said: "The proximity of the school and the probability that these lands would be used as a playground by the children were facts apparent to defendant's employees. Whether a reasonably prudent person, with a knowledge of the conditions surrounding the building and the use which the school children would probably make of this unfenced and unoccupied land, should have anticipated the danger incident to leaving these caps as they were left in the shed, was, we think, a question for the jury."

In Mattson v. Minnesota North Wisconsin Railroad Co.,95 Minn. 477, 104 N.W. 443, 445, 70 L.R.A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498, the court said:

"The rule governing cases of this kind, stated in substance, is that one who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remainthereon with the knowledge that children are in the habit ofresorting thereto for amusement, is liable to a child non sui juris who is injured therefrom, even though a trespasser."

Again the court said: "The dangerous instrumentality here involved (dynamite) is an extremely hazardous article in the hands of mature persons, and a hundred fold more so in the hands of young children. The 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 from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article (Keasbey on Electric Wires [2d ed.] 269, 270), and is greater and more exacting as respects young children. As to such, the care required to be exercised is measured by the maturity and capacity of the child. Sioux City P.R. Co. v. Stout, 17 Wall. (U.S.) 657, 21 L. Ed. 745. What would constitute reasonable care with respect to adults might be gross negligence as applied to a young child. 7 Am. Eng. Enc. Law (2d ed.), 441, and cases cited. The case at bar, within these rules, is even stronger than the so-called ``turntable cases.' There is nothing so attractive to young boys as articles of an explosive nature, and the greater the volume of sound that may be produced therefrom the greater the attraction. As compared with an ordinary turntable, dynamite is vastly more attractive, and far more dangerous. Young children are incapable of comprehending the dangers in handling or exploding the same, and their natural instincts urge them into experiments with it whenever it comes within their reach. In view of these considerations, the rule of law imposed upon him who possesses such dangerous articles should be more exacting than in the case of a turntable; and, applying the rule to the facts before us, it is clear that the jury was justified in finding negligence upon the part of defendant. It failed to take proper care of dynamite brought into this vicinity, and left it exposed upon the premises where children had, to the knowledge of its servants, been in the habit ofloitering and amusing themselves." (The italics are ours.)

3. In holding the allegations of the complaint sufficient to state a cause of action, we are fully cognizant of the large number of respectable authorities in which the rule that a landowner or occupier cannot be held responsible for injuries to children classed as trespassers, unless the same are willfully or wantonly afflicted. We are unwilling to accept it. In our opinion it leaves out of view the common propensities of children to venture in play without that care for their safety that comes with the experience of maturer years. Injuries resulting in death or maiming of children, who by reason of their immaturity have been disposed to investigate and play with attractive dangerous instrumentalities, form a long and melancholy train of events in the realms of jurisprudence. These mournful experiences are sufficient, we think, to supply the basis of a rule of care on the part of those employing such instrumentalities in places accessible to and likely to be frequented by children. The degree of care should, of course, be commensurate with the dangerous nature of the instrumentality. There are few things more attractive and none more dangerous for children to play with than a dynamite cap. As stated in Wood v. McCabe Co., 151 N.C. 457, 66 S.E. 433, 434: "All courts and writers agree that the degree of care required of persons using such dangerous instrumentalities as dynamite in their business is of the highest, and what might be reasonable care in respect to grown persons of experience would be negligence as applied to youths and children."

If the case were only the accessible pit with its machinery, equipment, and sand in or near thereto, with the instrumentality alleged, the respondents would not be subject to liability from the mere fact that two boys wandered there and picked up the dynamite cap which caused the injury. The duty arises from the additional circumstances of the place being frequented by children for play, and which habit was known to respondents. Because of this knowledge and the knowledge of the nature of the danger to which they were unconsciously exposed, respondents should have been prompted to anticipate their presence and take proper measures for their protection. That the habit of children visiting a place of danger might supply a foundation for liability was intimated by the court in United Zinc Chemical Co. v. Britt, supra, where the court remarks: "It does not appear that children were in the habit of going to the place; so that foundation also fails."

And again in the same opinion where the court, distinguishing Union Pac. R. Co. v. McDonald, 152 U.S. 262, 14 S. Ct. 619,38 L. Ed. 434, said: "It hardly appears that he was a trespasser; * * * at all events boys habitually resorted to the place where hewas." (We have supplied the italics.)

4, 5. It is contended by respondents that the complaint fails in stating essential facts in not alleging that the two boys who found the dynamite caps were children of inferior intellect. The argument in this regard is that boys of the age of 11 years should be presumed to appreciate the danger of dynamite caps and know that it was wrong to go on another's premises and appropriate personal property found there. We do not agree with this contention. There is no conclusive presumption that a child of 11 years of age must be considered capable of exercising the same care for its safety as a mature person. As was said in Consolidated City C.P. Ry. Co. v. Carlson,58 Kan. 62, 48 P. 635, 636: "The question as to the capacity of a particular child at a particular time to exercise care in avoiding a particular danger, is one of fact, falling within the province of the jury to determine."

In the instant case, insofar as the pleading is concerned, the question of the children's capacity for the exercise of due care is foreclosed by the allegations: "That these children, including appellant's son, had had no experience with dynamite caps and had no knowledge or appreciation of the dangerous character thereof."

6, 7. In the face of such allegations it cannot be said that contributory negligence appears on the face of the complaint. Consequently such negligence would be a matter of defense unless it appeared by plaintiff's evidence. The same is true of the contention that the boys should be presumed to know that it was wrong to appropriate the pieces of fuse, in view of the allegation that "at the time (they) understood and believed and had a right to understand and believe that * * * said pieces of fuse had been by respondents' workmen wholly discarded and abandoned and of no use or value."

8. Respondents contend that the complaint fails to show that the injuries to appellant's son were proximately caused by their negligence. It is insisted that the acts of the two boys on the premises as trespassers and wrongdoers constituted an intervening cause which was the proximate cause of the injury. So far as the complaint discloses, they were not trespassers, except in the very technical sense, and were not wrongdoers for taking the fuse which they believed had been discarded. Their actions, therefore, did not constitute such a sufficient independent cause operating between respondents' negligence and the injury that it can be said as a matter of law to have been the proximate cause of such injury, even though it contributed thereto, unless their acts could not have been reasonably foreseen.

The rule is stated in Konig v. Nevada-California-Oregon Ry.,36 Nev. 181, 135 P. 141, 153, where the court said: "* * * If the probable cause of an injury or accident is the first wrong done, then that becomes the proximate cause, regardless of how many acts may have been performed or how many agencies may have intervened between the first act or wrong and the catastrophe. Any number of causes may intervene between the first wrongful act and the final injurious consequences, and, if with reasonable diligence they are such as might have been foreseen, the consequences, as well as every intermediate result is to be considered in law as the proximate result of the first wrongful cause. Whenever a new cause intervenes which is not the consequence of the first wrongful cause, and which is not under the control of the first wrongdoer, and which he could not with reasonable diligence have foreseen, and except for which the final catastrophe could not have happened, then such a result must be held too remote to furnish the basis of an action. In all cases where no other cause intervenes between the original act or omission contributing or producing the resultant catastrophe, negligence of the first wrongdoer is to be regarded as the proximate cause of an injury." Thompson's Commentaries on Law of Neg., vol. 1, sec. 49.

The circumstances shown by the allegations of the complaint when subjected to the foregoing rule disclose a case where the respondents ought in reason to have anticipated what actually happened as the result of their negligence.

The judgment is reversed.