Bridges v. Dahl, 8353.
Decision Date | 14 December 1939 |
Docket Number | No. 8353.,8353. |
Citation | 108 F.2d 228 |
Parties | BRIDGES v. DAHL. |
Court | U.S. Court of Appeals — Sixth Circuit |
Ray E. MacAllister, of Iron Mountain, Mich., for appellant.
Kelly, Kelly & Kelly, of Detroit, Mich., and Eldredge & Eldredge, of Marquette, Mich., for appellee.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges.
This is an appeal from a judgment of $5,000 in favor of appellee. Appellant insists that the court erred in denying his motion for a directed verdict.
Appellant, C. G. Bridges, doing business under the name of C. G. Bridges Construction Company, during the calendar year 1930, was constructing a public highway in the vicinity of Bark River, Michigan, and, as a part of the project, maintained a workmen's camp composed of several buildings including a shed and garage. During the shut-down in the fall, winter and spring of 1930 and 1931, the construction equipment and explosives used in the prosecution of this work were stored in the garage building.
There is a sharp dispute as to whether the door to this garage was usually securely fastened or open, but there is substantial evidence showing it often remained open and that it was customary for children living near the camp to play about it and the other buildings on the premises. The garage was unfenced and without warning signs, all of which appellant knew. Appellee frequently delivered milk for his father to one of the families living at the camp and played about the garage and other buildings.
Although suit was not brought until after he attained majority, appellee was, at the time of the accident, but fifteen years and four months of age and he and a playmate, Louis Von Enkervort, on March 28, 1931, after delivering milk at the camp, entered the garage where appellant had a box of dynamite caps and took them and also a piece of fuse. At different times thereafter off the premises, appellee exploded some of the caps by placing the fuse in the open end, clamping them together with his teeth and, after lighting the fuse, throwing them. On April 2, 1931, he attempted to explode simultaneously the remaining sixty-one caps, placing a fuse in the open end of one of them, which as he tried to light, exploded throwing powder and pieces of metal violently into his face, causing severe injuries to his upper limbs, to his chest and other portions of his body, tearing the flesh of his right leg and burning and scarring his face. He was confined to a hospital for many months and permanently lost the sight of both eyes after much pain and suffering.
Appellee had no experience in the handling of dynamite caps and did not appreciate the dangers incident to their use, although he knew dynamite was dangerous and that it was unsafe to handle firecrackers. The caps were small and looked harmless.
Care is required of persons having possession and control of dangerous explosives, such as firearms, dynamite or caps and the utmost caution must be exercised to the end that harm may not come to others coming in contact with them and the degree of care is more exacting as respects young children. The extent of care which a reasonably prudent person should take with dangerous explosives to avoid injury in the case of a child is affected by the child's knowledge and understanding of the dangers incident to their use.
It is well-settled that one who keeps or uses explosives owes a duty to young children who cannot be expected to know or appreciate their danger, to exercise care commensurate with the danger to avoid injury to those who are likely to have access to or contact with the explosives. Michael Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154; Restatement of Torts, Section 339. There is substantial evidence that appellant was negligent in leaving these caps where they were easily found by appellee and his playmates.
Contributory negligence, not having been affirmatively plead as a defense, is not an issue in this case. Michigan Court Rule 23, Section 3; Rule 8, Civil Procedure, Subsection (c), 28 U.S.C.A. following section 723c.
Under the laws of Michigan, the rule prevails that where there is no legal duty, there can be no actionable negligence which has been applied to both infants and adults who were trespassers and to whom no duty was owed to keep the premises on which the injuries occurred in a reasonably safe condition. McCaughna v. Electric Company, 129...
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