Perry v. Rochester Lime Co.

• Decision Date: 25 July 1916
• Citation: 219 N.Y. 60,113 N.E. 529
• Parties: PERRY v. ROCHESTER LIME CO.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 60

113 N.E. 529

PERRY

v.ROCHESTER LIME CO.

Court of Appeals of New York.

July 25, 1916.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William J. Perry, Sr., as administrator, etc., of William J. Perry, Jr., deceased, against the Rochester Lime Company. From a judgment of the Appellate Division (163 App. Div. 934,147 N. Y. Supp. 1136), overruling plaintiff's exceptions, heard in the first instance at the Appellate Division, and ordering judgment for the defendant dismissing the complaint, plaintiff, by permission, aappeals. Affirmed.

See, also, 163 App. Div. 937,148 N. Y. Supp. 1138.

C. D. Kiehel, of Rochester, for appellant.

Percival D. Oviatt, of Rochester, for respondent.

CARDOZO, J.

The defendant stored explosives in a chest on the bank of the Erie Canal in the city of Rochester. It stored them in a public place and in violation of law. Two boys carried away some of the boxes, secreted them in a barn, and, handling the contents the next day, brought about an explosion. A little boy of eight years, who was near them, was killed. The question is whether the defendant may be held to answer for his death.

A narrow strip of land separates the defendant's warehouse from the Erie Canal. This land is public property. Boys were accustomed to go there to play and to fish. On this public space the defendant kept a chest of nitroglycerin caps, used to explode dynamite. The caps were packed in tin boxes, which were marked ‘Blasting Caps, Handle with Care,’ and the tin boxes were packed in a wooden box. The wooden boxes were without marks; they had sliding covers, with were closed; and they were about one foot long and nine inches high. Each wooden box contained at least 33 tin boxes.

On Sunday, November 12, 1911, this chest of explosives was left open. It was seen in that condition during the afternoon and evening by the operator of a nearby bridge. The practice had been to keep it closed and locked. So far as the record shows, it had never been left open before. Between 5 and 6 o'clock, John McGuire, a boy of 13 years, and Archie Clark, a boy of 12, went by the warehouse on an errand. There is evidence that on their way back they stopped at the chest and carried off one of the wooden boxes. They took supper that evening at the house of a friend. Before supper, they hid the boxes in the back yard. During the evening they showed the caps to their playmates. They had some of the tin boxes in their hands and other caps in their pockets. Before they left for home, they went to the yard, emptied the contents of most of the tin boxes into the wooden box, and carried the spoils away. Arriving home, they hid the box in a neighboring barn. Their home was with the Perry family, and about half a mile from the defendant's warehouse.

After school hours the next day, Mrs. Perry saw McGuire in the barn, and heard him call to Clark to join him. They came out of the barn with a wooden box. She did not know at the time what was in it. They walked off, carrying the box, and the Perry boy, 8 years of age, ran after them. The mother sent her little girl to call the boy back, but he was out of sight. A few minutes later, there was the sound of an explosion. McGuire and Clark and the Perry boy were killed. This action involves the defendant's liability for the death of Perry only.

[1] The defendant stored the explosives without a permit and in violation of an ordinance. It stored them, moreover, in a public place. It thus became a wrongdoer, and answerable as such for the proximate consequences of the wrong. It became answerable, in other words, for those consequences that ought to have been foreseen by a reasonably prudent man. Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U. S. 1, 7, 29 Sup. Ct. 321, 53 L. Ed. 671; McDowell v. Great Western Ry. Co. [1903] 2 K. B. 331, 337; Hall v. N. Y. Telephone Co., 214 N. Y. 49, 108 N. E. 182, L. R. A. 1915E, 191.

[2] But we cannot say that what was done with these explosives was something that ought to have been foreseen. The chest, it is true, was open; but the caps were not exposed. A large wooden box hid them. The boys did not play with caps scattered about loosely. They did not play at all. They carried away a large wooden box containing 33 smaller boxes, and appropriated the contents. They stole the caps in quantities that must have carried notice even to boys of their age that the act was wrongful. Indeed, there is good reason to believe that they stole, not for play, but for profit, intending to sell the spoils as junk. The defendant had done nothing to invite or provoke this theft. It had not scattered the caps about, or even exposed them to view, so that children might feel tempted, and perhaps licensed, to handle and play with them. It had packed the caps in tins, and then hidden the tins from sight by packing them in wooden boxes. The theft of one of the boxes was no more to be looked for than the theft of the whole chest. It was possible, of course, that the contents would be stolen by boys, or even by adults. But nothing in the situation made that outcome probable. In short, a series of new and unexpected causes intervened, and had to intervene, before these explosives could bring death to Perry. Not one of them was within the range of reasonable expectation. Boys discovered the hidden caps, stole a box, carried it to their home a half a mile away, and killed a playmate. His death was not the proximate result of the open chest in the highway.

We are not without apt precedents for this conclusion. Horan v. Inhabitants of Watertown, 217 Mass. 185, 104 N. E. 464;Jacobs v. N. Y., N. H. & H. R. R. Co., 212 Mass. 97, 98 N. E. 688,40 L. R. A. (N. S.) 41;Affick v. Bates, 21 R. I. 281, 43 Atl. 539,79 Am. St. Rep. 801; Hall v. N. Y. Tel. Co., supra. Indeed, the cases in other jurisdictions go farther than we need to go here, and farther, perhaps, than we should be willing to go. Very similar in its facts is Horan v. Inhabitants of Watertown, supra. Employés of the defendant's sewer department left a tool chest in a highway, unlocked and unwatched. The chest contained dynamite. Some boys took sticks of dynamite out of the chest, and threw them on a bonfire which they built in an adjoining field. The plaintiff, who was standing with other boys about the fire, was badly burned from the explosion. The court held that the wrongful storage of the dynamite was not the proximate cause of the injury. Yet the case at bar is even a clearer one for the defendant. There the dynamite was exposed to view; here it was concealed. There the explosion followed close upon the trespass; proximity in time and place gave unity to the transaction. Here the period of a day and the space of a half a mile intervened, and separated the theft from the explosion....