Graff v. Owens

OPINION

By KLINGER, J.

In support of the demurrer, counsel for defendants contends:

a. Negligence of the defendant was not the proximate cause of plaintiff’s injury.

b. Cause of the-explosion is not set forth in the second amended petition.

c. The two boys from whom the explosives were secured by the plaintiff, were trespassers and stole the explosives and carried them away off of defendant’s premises, and more than a month thereafter gave some of the stolen explosives to plaintiff.

d. These youthful trespassers are the intervening' responsible cause or agent between the plaintiff, and defendant.

The plaintiff contends, on the contrary, that:

a. The defendant violated §85903-1 to 5903-7 GC, inclusive.

b. That the defendant was the first wrongdoer in failing to exercise proper care to safeguard the general public against harm or injury from the explosives, and that he should have foreseen the danger to the public.

c. Whether the first wrongdoer should have foreseen that acts of third persons intervening and contributing condition necessary to injurious effect of original negligence, is a. matter that should be submitted to the jury.

In support of their contention, counsel for plaintiff cites Adams v Young, 44 Oh St 80; Community Traction Company v Freeman, 116 Oh St 448; Jurruss v Toledo, Fostoria & Findlay Electric Ry. Co., 124 Oh St 251.

There is much authority that it is negligence if a dangerous instrumentality is maintained on a person’s property, not properly safeguarded, and the owner of the premises is charged with the duty of “not wantonly injuring trespassers.”

In examining the authorities in this case, we find that much authority can be found on either side of the controversy.

Stated briefly, two boys whose names are not disclosed, were trespassers upon the lands of the defendant, and while trespassing they stole a quantity of explosive caps; about a month thereafter they gave to the plaintiff in this action, a portion of. the stolen cartridges and plaintiff placed them in his pockets. The petition does not disclose where the plaintiff was when these cartridges were given to him, or where he was when they exploded or what caused the explosion.

If any liability arises under the circumstances as pleaded in this action, it is because of the statutory provisions made concerning the storage of explosives, and the statutory requirements as to safeguarding the public.

The statutory enactmeuts for this purpose are found in §§5903 to 5903-25, GC, inclusive.

Sec 5903 GC provides these statutory requirements shall not be applicable as to explosives in quantities not exceeding five pounds at any one time.

See 5903-9 GC provides how blasting caps or other detonating or fulminating caps may be kept and stored, and there is nothing in the pleadings in this case to show that any violation of the statute in this regard occurred.,

It therefore follows that no statutory liability was pleaded by plaintiff, and, as stated before, there was no common law liability pleaded.

Under these circumstances, we do not believe that any of the authorities, in Ohio particularly, go so far as to hold the defendant responsible. On the other hand, we believe that the following' list of authorities support the ruling of the Court of Common Pleas, having regard to the distinction as to the facts in the cases cited, and the case at bar.

8 N.P. (N.S.) 95, reversed, 82 Oh St 462.

47 Oh St, 387.

77 Oh St, 235.

91 Oh St, 232.

83 Oh St, 254.

102 Oh St, 176.

116 Oh St, 448.

13 Oh Ap, 13.

22 Oh Ap, 98.

23 Oh Ap, 456.

107 Oh St, 104.

64 Oh St, 183.

29 Oh St, 364.

122 Oh St, 302-560.

36 Oh Ap, 395.

120 Oh St, 599.

57 Oh St 330.