Power v. Harlow

• Decision Date: 03 June 1885
• Citation: 57 Mich. 107,23 N.W. 606
• Court: Michigan Supreme Court
• Parties: POWER v. HARLOW.

23 N.W. 606

57 Mich. 107

POWER v. HARLOW.

Supreme Court of Michigan

June 3, 1885

Error to Marquette.

W.P. Healy, for plaintiff.

F.O. Clark, for defendant and appellant.

COOLEY, C.J.

This case has once before been in this court, and the opinion filed in deciding it is reported in 53 Mich. 507; S.C. 19 N.W. 257. It was sent back for a new trial, and has been tried with the result that the plaintiff has recovered a considerable judgment.

The action was brought to recover damages for an injury which is alleged to have been caused by the negligence of the defendant's servant. The material facts, as they were brought out on the former trial, are the following:

Defendant is owner of a farm near the city of Marquette, which is managed for him by one Hodgson. Parcels are leased from the farm to laboring men for the raising of vegetables, and the lessees cultivate these parcels with the assistance of their wives and children. The manager has been accustomed to use dynamite on the farm to rid it of stumps. The dynamite is put up in rough wood boxes, and with it, in a small tin box, are the exploders. These are shaped like ordinary percussion caps, but much larger, and are partially filled with a fulminate, which is very powerful, and liable to explode if accidentally struck or picked with a pin or knife or touched with fire. In the spring of 1883 a box of the dynamite with exploders was deposited by Hodgson under a small temporary shed near where parcels had been leased, and within a few feet of where the tenants would pass in going to and from their parcels for purposes of cultivation. Plaintiff's father was one of these tenants, and on July 4, 1883, the father was at work on his parcel, and plaintiff, who was then eight years and four months old, went with a brother who was two years older to take the father his dinner. They worked with the father a while, and then moved about at pleasure in the vicinity of the shed.

The plaintiff looked into the shed, saw the box there, looked into it, saw the exploders, took out one, and, being aware of no danger, struck it with a stone, when it exploded and injured him severely.

This court held, when the case was here before that there was evidence to go to the jury of negligence on the part of the defendant, in keeping the exploders thus exposed, and in dangerous proximity to where persons were accustomed to pass and repass, and where small children, who were rightfully in the vicinity, and who were without knowledge of the peril, might take and handle them. It was also held that, as there was no distinct path for the tenant's and their families, in going back and forth, the plaintiff could not be regarded as a trespasser in going to the shed, which was but a few feet from where a direct line from the highway to his father's parcel would pass; and that defendant, knowing that his tenants made use of the services of their children, should have anticipated that they would follow their childish instincts, in taking and handling what was left exposed, when they were aware of no harm in doing so.

On the second trial the efforts of the defense were very largely given to showing that the plaintiff knew the danger of handling the explosives, and that he had repeatedly been warned to keep away from and not handle them. Also that the father of the plaintiff was grossly negligent in permitting the boy to be about the shed where he knew the dynamite and explosives were stored. The counsel for the defendant in this court has presented succinctly, but in a very forcible manner, the evidence given upon this branch of the case, and it must be confessed that the showing is a very strong one so strong that, perhaps, if we were to pass upon the facts we might be constrained to accept it as conclusive. But the jury have given their verdict upon the facts; and we review not the conclusions of the jury, but the rulings of the court.

The errors assigned relate, in the main, to the action of the court in submitting the case to the jury. Only one ruling upon evidence is complained of. For the purpose of showing that the plaintiff knew the danger of handling the exploders, and had been warned to let them alone, the defense called Dr. Northrup, who attended upon the plaintiff after the injury, and showed by him that some one, in the presence of the plaintiff,--and his recollection was it was the plaintiff's mother,--made the statement that the boy had been frequently warned of the presence of the exploders, and told to let them alone. The plaintiff was at the time under the influence of an anaesthetic, and the doctor could not say that he was in a condition to understand what was going on about him. He was lying on a lounge and crying. Upon this evidence the trial judge remarked: "A statement by the mother, not in the presence or hearing of the father, or the boy, the plaintiff in this case, in my judgment, would not be admissible;" and he ordered it struck out.

It is claimed by the defense that the mother, as well as the father, was natural guardian of the boy, (East Saginaw C.R. Co. v. Bohn, 27 Mich. 503;) that as such she was chargeable with care for him, and her negligence is imputable to him. The deduction from this is that her admissions are evidence against him to prove his or her fault. No authority is cited to this, and we are aware of none. The natural guardian has no power to admit away the rights of the ward whose person is committed to his custody. He is guardian of the person only, having no control of any estate the ward may possess, and could not be given a control except on judicial proceedings and after giving security for responsible care. This being so, it cannot be plausibly claimed that by an irresponsible admission he may deprive his ward of important rights. A right of action is as much property as is a corporal possession, and, in the case of a minor, is protected by the law in the same way and under the same securities. The mother could not release it even for full consideration and by the most formal instrument; much less, therefore, could she, by mere word of mouth, when not under oath, or otherwise chargeable with responsibility, destroy his right of action by her admissions. The circuit judge was therefore right in his ruling. As the evidence did not fairly tend to show the plaintiff heard what was said, we have no occasion to consider what the ruling should have been had that fact appeared.

The following requests for instructions, on the part of the defense, were refused:

"There was nothing illegal for the defendant to permit his servants in charge of the work of the farm to use explosives for the purpose of taking out stumps, and he had a perfect right to do so, and to keep the explosives where he saw fit upon his farm, provided he or his servants used reasonable care to see that all who had a right to be upon said farm were informed of the dangerous character of such explosives, if they did not know such facts, and also where the same were stored.

"If you believe, from the evidence, that the explosives were kept in the shed in question at the time that the father rented his patch of ground for potatoes in the spring of 1883, and had been used previously for the purpose of taking out stumps, and that the father of the plaintiff knew that they had been so used, before hiring his patch of ground, his contract of hire was with reference to the fact that these explosives were so kept there; and he would have no right to complain on account of the place where they were kept, or the manner of their keeping, if they were kept after the hiring in the same manner, or as safely as they were at the time of his hiring said ground; and if you believe that the father brought the plaintiff upon the farm in question, having such knowledge, and that he did not carefully watch and guard him, so as to prevent him from going where the explosives were,--then he was guilty of contributory negligence, which would be imputed to the child, if he was too young to comprehend the danger, and therefore the plaintiff cannot recover."

The following is the charge of the judge as given, omitting formal parts.

"The defendant in this case is, and has been for some years, the owner of a farm near the city of Marquette. He has rented patches of land to poor people living in and about the city for them to plant potatoes and other vegetables on, from year to year. The plaintiff's father was one of those to whom the defendant so leased a piece of this land. The contract that was made between these parties involved the right of the plaintiff in this case to go with his father upon the land in question,--to go upon this piece of land, to take things for his father, and to work with his father upon the land. The children of the defendant's tenants, under the law in this case, had a right to go to and from this land, as I have said, to assist their parents.

"Our supreme court, in passing upon this case, has used the following language, which is the law in the case:

" 'The moving about of the children upon the land where they were at liberty to go, while they were not actually employed, was as much an incident to their being there as the loitering or playing by children outside the traveled path of the highway as they go upon it to school or upon errands. Children, wherever they go, must be expected to act upon childish instincts and impulses, and others who are chargeable with the duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment might naturally suppose they were at liberty to handle or play with, they should

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