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in which event they would have had the immediate enjoyment of their respective shares, but preferred, her disability being then entirely removed, to receive annually the sum specified in the agreement to be paid to her, up to the time of her death, as the evidence shows she did, she must, in my opinion, be regarded, in equity, as having waived any supposed rights she might have had as distributee of her husband's personal estate, and as having adopted, as between herself and the distributees, the terms of this written agreement, and as having agreed to be bound thereby."

In an action by a surviving husband for the specific performance of a postnuptial contract (Stewart v. Todd (Iowa) supra), it was held that a husband and wife could make a valid partnership contract, giving to the survivor all the property invested in the partnership business, its earnings, investments of its earnings, and resulting profits. For restrictions in Iowa on the right of a husband and wife to contract with respect to interests in one another's property, see supra, I. b.

Likewise, courts have held to be valid a postnuptial contract by a husband for the payment of money to his wife on his death. Northrop v. Barnum (1836) 15 Wend. (N. Y.) 167; Picket v. Johns (1827) 16 N. C. (1 Dev. Eq.) 123.

Northrop v. Barnum (N. Y.) supra, was an action on a bond given by a husband for the payment to his wife after his death of a sum of money bequeathed to his wife by the will of her father. In holding that the bond was valid, the court said: "It is true that the legacy, being personal property and bequeathed to the wife directly, became the personal property of the husband; he was therefore under no obligation to dispose of it for the benefit of the wife. He had, however, an undoubted right, and in this case it is to be presumed that he considered it his duty, to do so. jection is raised here by creditors, No obbut by the personal representative. We have the authority of Chief Justice Reeve for saying that if the hus

band, after marriage, receive a portion which came to his wife from some person deceased, and in consideration thereof make a reasonable settlement, it is good. Reeve, Dom. Rel. 178, citing Colvile v. Parker (1607) Cro. Jac. 158, 79 Eng. Reprint, 138. In Brown v. Jones (1744) 1 Atk. 188, 26 Eng. Reprint, 122, it is said by Lord Hardwicke that it is admitted, if a settlement is made before marriage, though without a portion, it would be good, for marriage itself is a consideration; and it is equally good if made after marriage, provided it be upon payment of money as a portion. That was a contest between creditors of the bankrupt husband on the one side, and the wife and children on the other. This is a contest between the wife herself, in the name of her trustee, and the executor of the husband. If such a settlement is good against creditors, it surely is against the party's representative. am clearly of opinion that the bond is valid, whether we look into the consideration or not."

I

The

In Picket v. Johns (N. C.) supra, the court held to be valid a separation agreement, and a bond to secure. its performance, whereby a husband contracted to have paid to his wife on his death a sum of money. court said: "I think the contract between Micajah Picket and Kezanah, his wife, in the year 1805, was founded on a good and meritorious consideration. That in point of obligation it is more than equal to settlements made after marriage, because in this case a compensation for the injury he had done her, the continuation of which was contemplated for the rest of his life, viz., in withdrawing his protection from her, and withholding from her anything like a suitable support, formed a consideration in addition to that upon which such settlements are supported. The settlement upon the children was also founded on a meritorious consideration, and the more to be enhanced, as it announced that a father's care was about to be withdrawn from them also." W. S. R.

PEDRO SEDITA, Appt.,

V.

DAVID STEINBERG et al.

Connecticut Supreme Court of Errors July 30, 1926.

(105 Conn. 1, 134 Atl. 243.)

Explosions, § 10 — injury to boy by explosion of gasolene tank.

1. The owner of property who maintains beneath the pavement between the building and the adjoining sidewalk with which it is level, a partly filled gasolene tank with an uncovered intake projecting above the pave ment, may be held liable for injuries to a boy by an explosion when he fires a toy pistol into the intake, if the pavement is found to be a practical extension of the walk, or the tank is found to have endangered travelers because of its proximity to the walk, and the boy is found not to have been a trespasser, but to have had the legal status of a traveler, to whom the property owner owed the duty of reasonable care, and the property owner is found to have been negligent, and the boy not so.

[See annotation on this question beginning on page 160.]

Trial, §§ 259, 265, 266 when direct

ed verdict proper.

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2. A verdict may be directed where the evidence is undisputed, where the only question is one of law, where the plaintiff's evidence is such that, if a verdict was rendered in his favor, it would properly be set aside, where reasonable men cannot differ as to the verdict which ought to be rendered, or where more than one conclusion is not reasonably open to the jury upon the evidence.

[See 26 R. C. L. 1067 et seq.; 3 R. C. L. Supp. 1491; 4 R. C. L. Supp. 1694, 1695; 5 R. C. L. Supp. 1438; 6 R. C. L. Supp. 1581, 1582. See also annotation in 8 A.L.R. 796.]

Explosions, § 10-knowledge imputed to one maintaining dangerous condition adjoining sidewalk.

3. One who places between his building and the abutting sidewalk a pavement level with and in no way marked off from the walk, having beneath it a partly filled gasolene storage tank with an uncovered inlet extending above the pavement, is chargeable with knowledge of the natural and probable consequences of maintaining such a structure, and of the danger of explosion by fire dropped into the intake by passers-by or children at play on the walk.

[See 20 R. C. L. 15, 16; 6 R. C. L. Supp. 1170.]

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capable in its nature of doing injury to persons leaves it exposed and unguarded in a public place, and one is injured as a natural and probable consequence without fault on his own part, the owner is responsible.

[See 11 R. C. L. 664; 2 R. C. L. Supp. 1299; 5 R. C. L. Supp. 614.] Proximate cause, § 11 when injury

is remote.

5. Although, to hold one leaving a dangerous thing exposed in a public place responsible for an injury, the injury must be the direct result of the misconduct, it will not be considered too remote if in the usual experience of mankind the result ought to have been apprehended.

[See 11 R. C. L. 666; 2 R. C. L. Supp. 1301.]

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Trial, § 113 question for jurystatus of boy on pavement adjoining sidewalk.

7. In an action to hold a property

(105 Conn. 1, 134 Atl. 243.)

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taining it and therefore liable for the
injury, is for the jury.
Highways, § 204
Highways, § 204 right of child to
play on sidewalk.

9. It is not unlawful for children to play upon the sidewalks of a city or upon an open space contiguous to and apparently forming a part of them.

[See 13 R. C. L. 368, 369; 6 R. C. L. Supp. 762.]

Explosions, § 10 negligence of boy firing pistol into gasolene tank.

10. A nine-year-old boy cannot be said to have been negligent as matter of law in firing a toy pistol into the uncovered intake of an abandoned partly filled gasolene storage tank located beneath a paved space adjoining the public highway, on which he was traveling, which intake projected several inches above the pavement, where he was ignorant of the fact that there was gasolene in the tank.

APPEAL by plaintiff from a judgment of the Superior Court for New Haven County (Nickerson, J.) in favor of defendants in an action brought to recover damages for personal injuries alleged to have been caused by their negligence. Error.

The facts are stated in the opinion of the court.
Messrs. Arthur W. Chambers and
Charles A. Watrous, for appellant:
The case should have been allowed
to go to the jury.

Heringer v. Underwood Typewriter
Co. 103 Conn. 675, 131 Atl. 322; Ulrich
V. New York, N. H. & H. R. Co. 98
Conn. 567, 119 Atl. 890.

The defendants, and each of them, were negligent.

Wilmot v. McPadden, 79 Conn. 367, 19 L.R.A. (N.S.) 1101, 65 Atl. 157; Birge v. Gardiner, 19 Conn. 507, 50 Am. Dec. 261; Ruocco v. United Advertising Corp. 98 Conn. 241, 30 A.L.R. 1237, 119 Atl. 48; Crogan v. Schiele, 53 Conn. 186, 55 Am. Rep. 88, 1 Atl. 899, 5 Atl. 673.

Contributory negligence of a boy of eight years of age is a question for the jury.

Boland v. Connecticut Co. 83 Conn. 456, 76 Atl. 1005.

Messrs. Walter J. Walsh and John
J. Sullivan, Jr., for appellees:

Plaintiff was a trespasser.
Pastorello v. Stone, 89 Conn. 286, 93
Atl. 529; Wilmot v. McPadden, 79
Conn. 367, 19 L.R.A. (N.S.) 1101, 65
Atl. 157.

Plaintiff was not a traveler.

Ruocco v. United Advertising Corp.

98 Conn. 241, 30 A.L.R. 1237, 119 Atl. 48; Crogan v. Schiele, 53 Conn. 186, 55 Am. Rep. 88, 1 Atl. 899, 5 Atl. 673; Norwich v. Breed, 30 Conn. 535; Smith v. Milford, 89 Conn. 24, 92 Atl. 675; Valin v. Jewell, 88 Conn. 151, L.R.A.1915B, 324, 90 Atl. 36; O'Neil v. New Haven, 80 Conn. 156, 67 Atl. 487.

Plaintiff's injury was the direct result of his tortious act.

Wilmot v. McPadden, 79 Conn. 367, 19 L.R.A. (N.S.) 1101,. 65 Atl. 157; McGhee v. Norfolk & S. R. Co. 147 N. C. 142, 24 L.R.A. (N.S.) 119, 60 S. E. 912; Holbrook v. Aldrich, 168 Mass. 15, 36 L.R.A. 493, 60 Am. St. Rep. 364, 46 N. E. 115, 1 Am. Neg. Rep. 451; McGuiness v. Butler, 159 Mass. 233, 38 Am. St. Rep. 412, 34 N. E. 259; Jacobs v. New York, N. H. & H. R. Co. 212 Mass. 96, 40 L.R.A. (N.S.) 41, 98 N. E. 688; Horan v. Watertown, 217 Mass. 185, 104 N. E. 464; Perry v. Rochester Lime Co. 219 N. Y. 60, L.R.A.1917B, 1058, 113 N. E. 529.

The verdict was properly directed. Dawson v. Orange, 78 Conn. 127, 61 Atl. 101; Currie v. Consolidated R. Co. 81 Conn. 383, 71 Atl. 356; Bradbury v. South Norwalk, 80 Conn. 298, 68 Atl. 321; Ward v. Metropolitan L. Ins. Co. 66 Conn. 241, 50 Am. St. Rep. 80, 33

Atl. 902; McVeigh v. Ripley, 77 Conn. 137, 58 Atl. 701; People's Sav. Bank v. Norwalk, 56 Conn. 556, 16 Atl. 257.

Haines, J., delivered the opinion of the court:

An examination of the record shows that upon the evidence before them the jury could reasonably have found these facts: On July 1st, the day of the injury, the plaintiff, Peter, just under nine years of age, and another boy named William, slightly younger, were sent, by the mother of the latter, to a store to buy some articles for her. Proceeding along the concrete sidewalk upon this errand, they reached a point in front of the premises of the defendants where the concrete was extended to the front of the buildings at Nos. 680-682 Howard avenue. At this point the concrete of the sidewalk proper and of the intervening space to the buildings presented an uniform surface unobstructed by a fence or any other structure. In this concrete, about five feet inside of the inner line of the sidewalk proper, was the projecting end of a pipe, three inches or thereabouts in diameter, and standing about two or three inches above the surface of the concrete, and about eight or ten feet from the building. This was the intake of an underground gasoline tank of about 1,100 gallons capacity. The tank had not been used for about two years, but contained some gasoline, the amount being uncertain. The projecting end of the pipe was for a long time protected with a screw-cap, but on the day in question and for at least two months prior to the accident there had been no cap there, and, though the pipe was partly plugged, it was open sufficiently so that the gasoline could be seen by looking down through the opening. The boys saw this gasoline, but thought it was water. The garage, in connection with which this tank had been used, had been vacant for some months. It was owned by the de fendants, who also owned the dwelling house which adjoined it. The

defendants, in their brief, seem to grant the assumption, based upon the plaintiff's evidence, that reasonable care on the defendants' part would have apprised them that the tank with gasoline and explosive vapors in it was thus open. As the boys reached this point while going upon their errand, they passed from the inner edge of the sidewalk to the vicinity of the pipe opening. They had with them a so-called "bingbang" toy pistol, which was fired without ammunition, by acetylene gas generated by combining carbide and water in a chamber in the pistol. When fired it produced a loud noise and a flash from the end of the barrel. The boys had taken turns firing this toy pistol, and, as they reached this pipe, the plaintiff pointed the pistol into the opening and pulled the trigger, firing down into what he supposed was the water, driving down in this way whatever plug or part of a plug was in the pipe. The result was an explosion which caused the injuries to the plaintiff which are the basis of this action.

The defendants made the threefold contention (1) that, upon the evidence before the jury, the plaintiff was a trespasser, so the defendants owed him no duty; (2) that the duty which the defendants owed, if any, was to travelers upon the highway, and the plaintiff was not a traveler; and (3) that the direct and proximate cause of the plaintiff's injuries was his own tortious act, as distinguished from negligence. The trial judge seems to have shared this view, for in directing the verdict, he said to the jury: "The plaintiff, Peter, left the sidewalk used for the public and went onto the land of the defendants, and there, with a pistol which he discharged into the pipe, blew out the plug therein and caused an explosion, as substantially testified to by him. In doing that he was a trespasser and the defendants owed no duty to him to keep the premises in safe condition for such use or acts by him."

A verdict may be directed where

Trial-when

proper.

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(105 Conn. 1, 134 Atl. 243.)

or

the evidence is undisputed, where the only question is directed verdict one of law, where the plaintiff's evidence is such that, if a verdict was rendered in his favor, it would properly be set aside, where reasonable men cannot differ as to the verdict which ought to be rendered, where more than one conclusion is not reasonably open to the jury upon the evidence. Heringer v. Underwood Typewriter Co. 103 Conn. 675, 131 Atl. 322; Swayne v. Connecticut Co. 86 Conn. 439, 85 Atl. 634, 737; Robbins v. Hartford City Gaslight Co. 82 Conn. 394, 74 Atl. 113.

We are thus led to consider whether, on the construction of the plaintiff's evidence most favorable to him, the jury could lawfully have reached no other verdict than the one the court directed. The court construed the evidence to require a holding that the plaintiff did not have the status of a traveler upon the highway, but was a trespasser upon the defendants' property to whom the defendants owed no duty of care, and that his injury was the direct result of his own tortious act. In determining the legal status of the plaintiff, and the resulting duty of the defendants to him, it should be noted that the jury might have found that the space between the buildings and the curb was entirely open, and apparently open for the use of all travelers who might choose to avail themselves of it. It was all of concrete, of grade with, and not marked off from, the sidewalk proper, and about five feet inside the imaginary line of the sidewalk was the open pipe with gas and explosive vapors below that opening and in the tank.

The defendants were chargeable with knowledge of the natural and probable consequences of maintaining such a structure in the pavement thus thrown open

Explosionsknowledge imputed to one maintaining

sidewalk.

dangerous con- for public use, and dition adjoining of the danger of an explosion by by the dropping of a lighted match or ciga

rette, by the fireworks which are commonly set off in the streets at that time of year, by the play and pranks of children upon this open pavement, which by reason of its width and smoothness, was a place where in passing to and fro upon this sidewalk their play was liable to take them; so, possibly, by the backfire of an automobile motor, and by many other not improbable happenings which might serve to ignite these inflammable gases. All these were things for the owners of this tank to take account of.

If the jury found the tank to be of this character, it would have closely paralleled the case of a gas company which negligently permitted gas to escape from a defective gas main, with the result that when some one struck a match an explosion resulted. The company was held responsible. Koelsch v. Philadelphia Co. 152 Pa. 355, 364, 18 L.R.A. 759, 34 Am. St. Rep. 653, 25 Atl. 522.

If the owner of a thing which is capable, in its nature, of doing injury to persons, leaves it exposed and unguarded in a public place, and one leaving danbe injured, as a nat- gerous thing ural and probable

Negligence

exposed.

consequence, without fault on his own part, the owner is responsible. The injury, how- Proximate ever, must be the di- cause-when inrect result of the jury is remote. defendant's misconduct, and it will not be considered too remote if, in the usual experience of mankind, the result ought to have been apprehended. Lane v. Atlantic Works, 111 Mass. 136, 139; Lombardi v. Wallad, 98 Conn. 510, 519, 120 Atl. 291, 23 N. C. C. A. 249.

The defendants deny responsibility on the ground that the tank was on their property and not within the limits of the public walk, so that in going to this pipe the plaintiff was a trespasser. In Crogan v. Schiele, 53 Conn. 186, 55 Am. Rep. 88, 1 Atl. 899, 5 Atl. 673, the plaintiff was injured by reason of an unguarded opening seven feet two inches inside the line of the side

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