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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

placed there by the defendant while engaged in road-construction work, it was held in Butrick v. Snyder (1926) Mich. 210 N. W. 311, that liability could not be avoided on the ground that the plaintiff was a trespasser, to whom the defendant owed no duty to protect from such a danger, where the lot on which the caps were found was a natural playground for children attending the school, who were permitted to go there with the consent of the teacher and without objection by the landowner. The court said that the teacher had the right to assume that those who occupied the land had left nothing dangerous thereon which would be attractive to young children; that the proximity of the school and the probability that the land would be used as a playground were facts apparent to the defendant's employees. And the court followed Powers v. Harlow (1884) 53 Mich. 507, 51 Am. Rep. 154, 19 N. W. 257, which is set out in the annotation in 43 A.L.R. on p. 439, and which holds the landowner chargeable for failure to exercise the required degree of care towards children who must be expected to act on childish instincts.

Also, in Serviss v. Cloud (Kan.) supra, it was unsuccessfully attempted to prevent recovery for the death of a boy due to an explosion of powder found in a quarry in a municipality, where it had been negligently left by the defendant, on the ground that the boy was a trespasser and unlawfully took the powder and carried it to his home, some distance from the quarry, where he exploded it. Judgment for the plaintiff was affirmed, but question of the boy's status, whether as a trespasser, invitee, or otherwise, is not discussed.

It was held in Shaffer Oil & Ref. Co. v. Thomas (Okla.) supra, that liability could not be avoided on the ground that the boy was a trespasser on the defendant's property, where the place was near a path traversed by school children, and in the vicinity of a public playground, and it was shown that children were in the habit of frequenting the place and playing

with a gasolene drip negligently left without a locking device.

And an action for the death of a nine-year-old boy by the ignition of powder in his pockets, which set fire to his clothing, it was held in Colebank v. Nellie Coal & Coke Co. (1927)

W. Va., 136 S. E. 512, that the deceased was not a mere trespasser or licensee, but an invitee to whom the defendant coal company, as owner of the premises, owed a duty to exercise reasonable care, where it was alleged (the case arising on demurrer to the declaration) that the defendant maintained on its premises a public playground, or place of amusement, for the use of children and others of the community, and that the child, who resided in the community, sustained injuries resulting in his death while playing with dangerous explosives carelessly stored by the defendant in a water-closet on the premises.

In Eves v. Littig Constr. Co. (1927) Iowa, 212 N. W. 154, an action for injury to a ten-year-old boy from the explosion of dynamite caps which had been negligently left by the defendant construction company near the edge of a highway, where they were found by the boy, the court held that the latter was not a trespasser, in that, at the time he found the explosives, he was walking along the top of an embankment which was approximately 12 feet above the surface of the highway.

In the reported case (SEDITA V. STEINBERG, ante, 154) the decision is based on the ground that the boy who was injured might have been found by the jury to have had the legal status of a traveler on the highway at the time of the injury, and that the court should not hold as matter of law that he had become a trespasser, to whom the abutting property owner owed no duty of care, where the pipe into which he fired the toy pistol, resulting in the explosion and injury, was located about 5 feet from the sidewalk, but the intervening space was paved on a level with, and not separated from, the sidewalk, and was apparently open for the use of travelers generally. The court, in taking

the view that under these circumstances recovery for the injury was not precluded as matter of law on the ground that the injured party was a trespasser, reaches a conclusion in accord with many other decisions in cases where the abutting property owner has been held liable to parties who strayed from the boundaries of the highway, the limits of which were not defined, and sustained injuries by falling into excavations or coming in contact with dangerous instrumentalities on the adjoining premises, which were apparently a part of the highway, or at least were open for travelers who chose to use the same. It will be noted that the authorities quoted in the SEDITA CASE apparently support the view that, even though the traveler was aware of the technical line of the highway, he would not necessarily become a trespasser by passing across it, where the abutting owner has apparently thrown open to the public that part of his property covered by an extension of the public sidewalk or highway. In addition to the cases cited in the opinion in this case which support the views above indicated, attention may be called to the following among other cases, which illustrate the principle involved: Tomle v. Hampton (1889) 129 III. 379, 21 N. E. 800; Holmes v. Drew (1890) 151 Mass. 578, 25 N. E. 22; Sears v. Merrick (1899) 175 Mass. 25, 55 N. E. 476, 7 Am. Neg. Rep. 58; Beck v. Carter (1877) 68 N. Y. 283, 23 Am. Rep. 175; Bush V. Johnston (1854) 23 Pa. 209; Rachmel v. Clark (1903) 205 Pa. 314, 62 L.R.A. 959, 54 Atl. 1027, 14 Am. Neg. Rep. 208.

The abutting landowner must use ordinary care and prudence to render the premises reasonably safe, under the above circumstances. See Holmes v. Drew (1890) 151 Mass. 578, 25 N. E. 22, supra. And, if a space inside the building line is permitted by the abutting owner to remain open and to be used as part of the sidewalk, he must exercise due care not to place there dangerous obstructions which may result in injury to children lawfully on the walk, including children. who may be attracted to and may en

ter upon the premises. Rachmel v. Clark (Pa.) supra. And, if the adjoining property owner connects a part of his own premises with a public sidewalk, he thereby invites the public to treat the part so connected as belonging to the sidewalk, and cannot be heard to say that the whole is not a public way. Tomle v. Hampton (Ill.) supra.

III. Proximate cause.

(Supplementing annotation in 43 A.L.R. 442 et seq.)

In an action for the death of an eight-year-old boy who was burned through the ignition of blasting powder with which he was playing, the court, in Eastern Carbon Black Co. v. Stephens (1926) Ky., 287 S. W. 215, held that the defendant, which had placed partially filled cans of the powder in an outbuilding on its premises, on a shelf 7 feet from the floor, where it was found by the boy, who had been frequently warned and punished for playing on the premises, need not, in the exercise of reasonable care, have anticipated that a child would discover the powder, would devise means of climbing to the storage place, remove and uncap the container, carry away a portion of the powder, and be burned while throwing it in a fire.

See also Beickert v. G. M. Laboratories (N. Y.) under IV. e, infra, where a boy was injured by picking up scraps of motion-picture film, which he caried away and ignited; and it was held that the defendant, in dumping pieces of film on a vacant lot adjacent to its plant for purposes of burning the same, was not obliged to anticipate that an unburned piece might be thus secured, carried away, and ignited.

In other cases, however, the circumstances have been such that the courts have held that the defendant's negligence was the proximate cause of the injury, or at least that the jury might so find.

Thus, in an action for injury to a ten-year-old boy, who, as he was passing along a sidewalk with playmates, stopped to investigate a box contain

ing dynamite caps negligently left by the defendant town about 3 feet from the walk, and in plain view therefrom, took one of the caps and exploded it by applying a lighted match, to his injury, the court in Depew v. Kilgore (1926) 117 Okla. 263, 246 Pac. 606, in affirming a judgment for the plaintiff, held that the chain of causation was not broken, as matter of law, so as to prevent the original negligence of the town through its street commissioner, from being the proximate cause of the injury, merely because of the act of another boy seventeen years of age, who directed the plaintiff to apply a match to the cap. The court said that the rule of law applicable to such a situation is that, where the defendant is guilty of original negligence, and, from the evidence, the inference may be reasonably drawn that the original negligence placed in motion the intervening act which was the immediate cause of the injury, but that such injury would not have happened if it had not been for the original negligence, the defendant will be held liable; that this was a question for the jury, which evidently concluded that the original negligence of the defendant, in placing the dynamite caps in the exposed position, so that the plaintiff came into contact therewith and procured possession of one of the caps, was the occasion of, or put in motion, the independent act of the older boy in directing the plaintiff to apply a lighted match to the cap.

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And, in Butrick v. Snyder (1926) Mich., 210 N. W. 311, it was held that negligence of a road contractor, in leaving in an unlocked shed in a vacant lot, near a schoolhouse, dynamite caps used by it in its work, was the proximate cause of injury to a schoolboy, who, with the teacher's consent, went upon the lot, which was a natural playground for the children attending the school, found one of the caps, and was injured by its explosion when he attempted to light it with a match. The court, in affirming a judgment for the plaintiff for the injury, said that the proximity of the school, and the probability that the lot would be used as a playground for the chil

dren, were facts apparent to the defendant's employees; that whether a reasonably prudent person, with the 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 the caps as they were in the shed, was a question for the jury; that, if the finding were that he should, then the defendant owed to the plaintiff and other children who might be about the shed the duty to remove this dangerous explosive, or to safeguard its use in a reasonable way; and that the neglect of its employees in this respect was the proximate cause of the injury.

It was held, also, in Butrick v. Snyder (Mich.) supra, that the act of another boy eleven years of age who accompanied the plaintiff to the shed, and who reached and took two of the caps (which were beyond the plaintiff's reach), and gave one of them to the plaintiff, which injured him, was not as matter of law an intervening cause which would relieve the defendant from liability, the court saying that the older boy had no appreciating sense of the dangerous nature of the caps, and his act in handing one to the plaintiff should have been anticipated, and was not such an intervention as to destroy the causal connection between the wrongful act of the defendant's employees and the consequences which followed.

It was said in Serviss v. Cloud (1926) 121 Kan. 251, 246 Pac. 509, in affirming a judgment for damages for the death of a fourteen-year-old boy through the explosion of powder found by him in a stone quarry in a municipality and carried to his home, where the accident occurred while he was playing with the powder, that a person using explosives in a quarry in a large city, who leaves the explosives exposed in open cans without anything being done to prevent their being carried away by children, should anticipate that children might play in the quarry, might find the powder and carry some of it away, and might explode it to their injury.

And it was held in Eves v. Littig Constr. Co. (1927) — Iowa, —, 212 N. W. 154, that the question of proximate cause was for the jury, and that a judgment for the plaintiff should be sustained, in an action for injury to a boy about ten years of age, who, while passing along a highway, discovered a box of dynamite caps negligently left there by the defendant, carried the caps home, and was injured while attempting to remove the explosive therefrom. The court said that the attempt of the boy to remove the dangerous substance from the cap was one of the things which the defendant was bound reasonably to anticipate and guard against, and was not an intervening, independent cause, but the direct and proximate result of the placing or abandonment of the caps at the place where they were found. See this case, also, under IV. b, infra.

And see the reported case (SEDITA V. STEINBERG, ante, 154), to the effect that the injury must be the direct result of the defendant's misconduct, and will not be considered too remote if, in the usual experience of mankind, it should have been apprehended.

IV. Particular applications. a. Blasting or gun powder. (Supplementing annotation in 43 A.L.R. 452.)

In Eastern Carbon Black Co. v. Stephens (1926) - Ky., 287 S. W. 215, it was held that a manufacturing company which, in clearing ground, used blasting powder and placed partially filled cans of powder on a shelf, 7 feet from the floor, in an outbuilding on uninclosed ground near its plant, could not be held liable for the death of an eight-year-old boy who was burned while playing with the powder. which he had found and removed from one of the cans, notwithstanding the fact that the room in which the powder was kept was unlocked, where there was nothing in the room calculated to attract children, the powder was not visible until the room had been entered, and there was no way of reaching the powder unless some means were devised of climbing to the

shelf and unscrewing the cap on the container (which in this instance was unscrewed with a wrench), it appearing, also, that the injured child and other children had been frequently warned and punished for being on the premises, and that, although they had sometimes gone into an adjacent room notwithstanding the warnings, they had never previously, except on one occasion, entered the room where the powder was stored. It was held that a peremptory instruction for the defendant should have been given.

But it was held in Serviss v. Cloud (1926) 121 Kan. 251, 246 Pac. 509, that parties who were operating a stone quarry in a municipality might be held liable for the death of a fourteen-year-old boy through an explosion of powder found by him in the quarry and carried to his home, where it exploded while he was playing with it, it appearing that the open cans of powder were left in the quarry in the open, unprotected, unguarded, and without a warning sign.

W.

And it was held in Colebank v. Nellie Coal & Coke Co. (1927) Va. -, 136 S. E. 512, that a cause of action was stated against a coal company for death of a child nine years of age by an explosion of powder in his pockets, which set fire to his clothing, where it was alleged that the company maintained on its premises a public playground, or place of amusement, for the use of children and others in the community; that it stored in a water-closet on the premises large quantities of powder, and left the door of the building unlocked and unguarded; that some of this powder was obtained by the deceased, who, in ignorance of its dangerous character, placed some of it in his pocket, and other portions of it in a can, to which he applied a match, with the results above indicated.

b. Dynamite and explosive caps generally.

(Supplementing annotation in 43 A.L.R. 454 et seq.)

In Depew v. Kilgore (1926) 117 Okla. 263, 246 Pac. 606, it was held that where a town, in working its

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