walk, and located on the defendant's land, being an open space between the front of the factory and the sidewalk. This space and the sidewalk were paved with brick, and were all of the same grade. While the general course of the sidewalk was indicated by that portion on each side of the defendant's lot, there was nothing to mark the exact line of separation between the sidewalk and the defendant's land. In that case, too, the trial court ruled the plaintiff was a trespasser and not a traveler upon the public highway. In holding this ruling erroneous, we said:

That the point was not well taken; that the entire space from the street to the building was apparently a public sidewalk, and it did not appear the plaintiff knew anything to the contrary. "It will not answer for the defendant to say to the plaintiff, "True it is that by my act there was an apparent, visible, manifest public walk which extended to my shop, but you, a stranger, must be held to know where the divisional line is, although I have so built and maintained the sidewalk that you are naturally misled thereby.'"

And we added: "There is no principle of law or justice which will warrant a court in holding a person to be a trespasser who uses as a public way an apparent public sidewalk kept so by the act of the defendant simply because he steps over the technical legal boundary line. By the construction of the walk, the plaintiff, as one of the public, was told in a most emphatic way that the sidewalk extended to its full apparent width. . . . The defendant's acts would indicate, even if a person knew where the technical line of the street was, that the defendant had thrown open to the public, and made part of the public domain, that part of his property covered by this extended sidewalk, and much more so as to a person who did not know where the line was. The streets of our cities, especially in the mer

cantile and manufacturing districts, are full of instances where the buildings are set on the street line or at varying distances therefrom, with similar continued and extended payments." Ibid.; Lindblade v. United States Rubber Co. 102 Conn. 396, 400, 128 Atl. 707; Ulrich v. New York, N. H. & H. R. Co. 98 Conn. 567, 568, 119 Atl. 890; Pomponio v. New York, N. H. & H. R. Co. 66 Conn. 528, 539, 32 L.R.A. 530, 50 Am. St. Rep. 124, 34 Atl. 491.

when one pass

Negligence

We cannot concur in the defendants' claim that the plaintiff had necessarily ceased to use the highway as a traveler. In Valin ing on to pavement adjoining v. Jewell, 88 Conn. walk is tres151, L.R.A.1915B, passer. 324, 90 Atl. 36, where a tenant, in cleaning the sidewalk in front of his tenement, was injured by falling on some ice, he was held at the time he fell not to be a traveler. That case is not in point, and the same is true of O'Neil v. New Haven, 80 Conn. 156, 67 Atl. 487, which the defendants cite.

The facts which the jury might reasonably have found in the instant case would bring it clearly within our ruling in the case of Crogan v. Schiele, quoted above. It could not properly be assumed by the trial court that these boys were necessarily trespassers. It was a question for the

for jury-status ment adjoining

upon the highway, it would be necessary to decide upon the evidence whether the defendants were negligent in maintaining the open pipe and tank in the position it was. A decision that they

Negligence-of property owner were must be based -question for upon a finding that jury. the public walk was dangerous and unsafe. That is a question of fact for a jury under proper instruction from the court.

We held in Crogan v. Schiele, supra, that the true test of liability was whether the thing maintained by the defendant could, with due regard to the rights of travelers, be left unguarded or not, and that that question depended upon whether, being unguarded, it endangered travel or not, and that proximity to the line of highway, while a circumstance to be considered, was not, of itself, controlling. Ruocco v. United Advertising Corp. 98 Conn. 241, 245, 30 A.L.R. 1237, 119 Atl. 48; Smith v. Milford, 89 Conn. 24, 31, 32, 92 Atl. 675; Udkin V. New Haven, 80 Conn. 291, 297, 14 L.R.A. (N.S.) 868, 68 Atl. 253; Beardsley v. Hartford, 50 Conn. 529, 538, 47 Am. Rep. 677; Norwich v. Breed, 30 Conn. 535.

The decisions in Massachusetts adopt the same general rule, but emphasize somewhat more strongly the fact of the proximity to the public way. Mellen v. Morrill, 126 Mass. 545, 546, 30 Am. Rep. 695; Puffer v. Orange, 122 Mass. 389, 391, 23 Am. Rep. 368; Warner v. Holyoke, 112 Mass. 362, 367.

Taking the most favorable view of the plaintiff's evidence, the jury were privileged to find that here was a dangerous condition maintained by the defendants which would result in a serious explosion if a spark came in contact with it; that it was the duty of the defendants to exercise reasonable care to guard against such a result; and that their failure to do so was negligence. That the plaintiff, at the moment of the accident, was using the street, not for the purpose of passage, but

in play, did not thereby render him other than a travel

er upon it. It is not right of child Highways unlawful for chil- to play on sidedren to play on the

walk.

sidewalks of a city, or on the open space contiguous to and apparently forming part of it, as these children were doing. The plaintiff's conduct in the instant case would not defeat a recovery by him unless the jury found from reasonable evidence that he was guilty of contributory negligence. Whether the other element necessary to give the plaintiff a verdict, viz., the lack of contributory negligence on the part of this boy, could also have been found, depends likewise upon the conclusions of fact drawn by the jury from the evidence. Here again, if the jury believed and most favorably construed the plaintiff's evidence, we think they might reasonably have found the boy not guilty of contributory negligence. What would have been due care on the part of an intelligent adult might be quite different in the case of this boy. They could reasonably have found the plaintiff was less than nine years of age; his use of this toy pistol was not necessarily unlawful; he did not know of the possibility of an explosion; he supposed what he saw was water; he does not appear to have known that what he did was a wrongful or an unlawful act; he does not appear to have intended to injure the defendants' property, nor is there anything to show that he knew it was the defendants' private property; he was, conceivably, doing what would not naturally be expected of a reasonably intelligent child of his age. We would be unwilling to say on the evidence now before us that the plaintiff was as matter of law necessari- Explosionsly guilty of contrib- boy firing pistol utory negligence. tank. This, too, was a question for the jury under proper instruction from the court. Lynch v. Shearer, 83 Conn. 73, 74, 75 Atl. 88; Wilmot v. McPadden, 79 Conn.

negligence of

into gasolene

d. Signal torpedoes, 167.

1. Introduction.

This annotation is supplemental to that on the same question in 43 A.L.R. 434.

II. Care and duty in general. (Supplementing annotation in 43 A.L.R. 435.)

The rule laid down in the cases cited in the earlier annotation on this question in 43 A.L.R. on p. 435, to the effect that in this class of cases, the degree of care on the part of the person keeping or using explosives, to prevent injury to children who may have access to or come in contact with the same, must be commensurate with the dangerous nature of the object, is supported also by Eves v. Littig Constr. Co. (1927) Iowa, 212 N. W. 154; Sparks v. Maeschal (1926) 217 Ky. 235, 289 S. W. 308; Eastern Carbon Black Co. v. Stephens (1926)

In holding that the degree of care was only required to be commensurate with the dangerous quality of the explosive, the court, in Eastern Carbon Black Co. v. Stephens (Ky.) supra, distinguished between the case in question, where the injury was from blasting powder, which could only be exploded by coming into contact with fire, and cases of injury from dynamite and dynamite caps which might be exploded by a jar or concussion. See in this connection, Beickert v. G. M. Laboratories (N. Y.) under IV. e, infra.

In Depew v. Kilgore (1926) 117 Okla. 263, 246 Pac. 606, the rule is laid down that the utmost care is required of persons handling or keeping a dangerous instrumentality, such as

dynamite caps, to protect children or immature persons from the danger incident thereto. And an instruction to this effect was approved, in an action for injury to a ten-year-old boy from an explosion of a dynamite cap found by him near a sidewalk, where it had been negligently left by a street commissioner. The court said that the general rule is that the law requires each person to use such care for the safety of others, in and about the keeping of his property, as an ordinarily prudent person would use under all the facts and circumstances of the case; that it is well settled that there is a difference in the degree of care which is required in respect to safety from a dangerous instrumentality where a child is involved, and in the case of a mature person; and that, in the handling of a dangerous instrumentality such as dynamite caps, a higher degree of care is required than in the handling of less dangerous species of property.

So, it is said in Serviss v. Cloud (1926) 121 Kan. 251, 246 Pac. 509, that those who handle gas, electricity, or explosives must use the highest degree of care to avoid injury to oth

ers.

In Eves v. Littig Constr. Co. (Iowa) supra, a case of injury to a ten-yearold boy from dynamite caps negligently left along the highway by the defendant construction company, the court said: "The law is well settled and universal that one dealing in, using, or handling explosives must exercise the highest degree of care to prevent injury to property or persons; that is, such care as is commensurate with the nature of the substance and the dangers incident to the handling or use thereof. . . . The tendency of small boys to possess themselves of boxes and other objects of attractive appearance found upon the streets or highways is proverbial, and it was the duty of appellant, in the use and handling of a deadly explosive, to guard them against such perils as might reasonably be foreseen to occur. Whatever might happen that was within the range of prudent human foresight, it was in duty bound to guard against. 49 A.L.R.-11.

Its liability, if any, must rest upon some violation of this duty which was the proximate cause of the injury. The duty of one employing explosives to exercise the highest degree of care for the safety of others is everywhere recognized and sustained by authority."

Persons storing and using dynamite caps and explosives in places which are accessible to, and naturally attractive to, children, must use a corresponding degree of care to protect children from injury therefrom. Hercules Powder Co. v. Wolf (1927) Miss., 110 So. 842.

In an action for injury to a boy eleven years of age, who was burned while attempting to dry his clothes at a fire, after they had become saturated with gasolene while he was playing at a gasolene drip maintained by the defendant oil company and negligently left without a locking device, the court, in Shaffer Oil & Ref. Co. v. Thomas (1926) 120 Okla. 253, 252 Pac. 41, said that as a general rule every person is required to use such care in the keeping of his property as an ordinarily prudent person would have used under the circumstances, but that there is a difference in the degree of care required to be used in guarding. against dangers where a child or immature person is concerned, and in the case of a mature person.

In the earlier annotation on this question (43 A.L.R. on p. 437) it is said that, in most jurisdictions, the mere fact that the child is technically a trespasser will not relieve the landowner, or the person using or storing the explosives, from liability; that the question is one of negligence,-whether the presence of the child should have been anticipated, and whether due care was exercised to prevent the explosives falling into the hands of an inexperienced child. This view is supported by the later cases.

Thus, in an action for injury to a nine-year-old schoolboy through explosion of a dynamite cap which he had found in a shed on a vacant lot on the opposite side of the highway from the schoolhouse, and about 600 feet therefrom, the cap having been