103 Mass. 507 (Mass. 1870), Carter v. Towne

Citation:103 Mass. 507
Opinion Judge:Gray J.
Party Name:Edward D. Carter v. Ezra Towne & another
Attorney:G. A. Somerby, for the defendants. N. St. J. Green, for the plaintiff,
Court:Supreme Judicial Court of Massachusetts
 
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Page 507

103 Mass. 507 (Mass. 1870)

Edward D. Carter

v.

Ezra Towne & another

Supreme Court of Massachusetts, Middlesex

January, 1870

Tort for carelessly and unlawfully selling to the plaintiff, a child eight years old, two pounds of gunpowder, which the plaintiff fired off and was thereby injured. After this court had overruled the demurrer to the declaration, as reported 98 Mass. 567, the defendants filed an answer, denying each and every allegation in the declaration, and alleging that, if the sale was made to the plaintiff, it was made with the knowledge and assent of the plaintiff's father.

At the trial in the superior court, before Putnam, J., the plaintiff testified that he became nine years old in March 1867, and that on June 27, 1867, he went alone to the shop of the defendants and purchased of them a pistol, a box of percussion caps, and two pounds of gunpowder in four packages containing one half pound each; that he carried these articles home, and with the knowledge of his aunt, who was in charge of the house and of himself in the absence from town of his father and mother, placed them in a cupboard in the sitting room; that the powder remained in the cupboard until July 4 following, when his mother took the pistol and a portion of the powder from the cupboard and gave them to him, and with her knowledge he fired about a pound of the powder from the pistol, until he broke the hammer of the pistol lock; that on July 9, he, with the knowledge of his mother, took from the cupboard a flask, containing a quarter of a pound of the powder, carried it into the yard adjoining the house, strewed part of the powder on the ground, left the flask containing the rest of it near the trail he had made, and fired the powder; that the flask exploded and he was burned thereby; that he bought this powder and pistol to use on July 4; and that his father was at home at night, but absent through the day, and knew nothing about this powder; and there was no evidence that the father did know anything about it. The plaintiff's mother denied any knowledge of his use of the powder on July 9.

The defendants offered no evidence, but requested the judge to instruct the jury "that there was no legal and sufficient evidence to authorize the jury to find a verdict for the plaintiff; and that the act of selling the gunpowder was not the immediate and proximate cause of the injury." The judge declined so to...

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