Barnett v. Cliffside Mills
Decision Date | 23 December 1914 |
Docket Number | 485. |
Citation | 83 S.E. 826,167 N.C. 576 |
Parties | BARNETT v. CLIFFSIDE MILLS. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Cleveland County; Harding, Judge.
Action by Timmons Barnett, by next friend, against the Cliffside Mills. From a judgment for plaintiff, defendant appeals. Affirmed.
Evidence held to support jury finding that dynamite cap, by which boy was injured, was left by defendant's employees at a place much used by the public including children, on the ground or in an uncovered box.
It was negligence to leave a dynamite cap on the ground or in an uncovered box at a place not inclosed and much used by the public, including children.
This is an action to recover damages for personal injury caused by the explosion of a dynamite cap. The material parts of the evidence are stated in the opinion.
The defendant moved to dismiss the action, because of the pendency of another action for the same cause in Rutherford county, in which a judgment of nonsuit had been entered. The motion was overruled, and the defendant excepted.
There was also a motion for judgment of nonsuit, which was overruled, and defendant excepted.
His honor charged the jury, among other things, as follows:
(1) "Now, if you find, by the greater weight of this evidence, that the defendant was constructing a well there and that they left lying around on the ground, as testified to by plaintiff and some of the witnesses, these highly dangerous explosives, dynamite caps, the court charges you that it is a dangerous instrumentality, that is, if the evidence disclosed this, that they left them there loose without any inclosure, no fence around there, nothing to warn the plaintiff of their presence, and that it was a public place, and that the plaintiff was attracted there by the presence of other children, seeing it lying there, and not knowing what it was and its dangerous nature, he took it home, as he contends, and was injured, as he contends if you find all of that by the greater weight of the evidence, then the court charges you that would be negligence for which the defendant would be liable, and if you find that, that that negligence was the proximate cause of the plaintiff's injury, then you will answer the first issue, 'Yes.' " (Defendant excepted.)
(2) "And in this case if you find that, after using these dynamite caps, defendants, or their employés, went away and left them on the ground, as testified to by the plaintiff without any inclosure or warning to plaintiff, that would be a negligent act, and if plaintiff, not knowing of its dangerous nature, in the innocence of youth, took it to his home and broke it with a hammer, and it exploded and injured him, if you find there was an injury, and that it was the proximate cause upon the facts outlined by the greater weight of the evidence, then you will answer the first issue 'Yes.' " (Defendant excepted.)
(3) "One who maintains dangerous instrumentalities or appliances on inclosed premises, of a nature likely to attract children at play, or permits dangerous conditions to exist, while not liable to an adult under those circumstances, is liable to a child so injured, though a trespasser at the time the injuries were received." (Defendant excepted.)
(4) (Defendant excepted.)
There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.
Ryburn & Hoey and Quinn & Hamrick, all of Shelby, and Cansler & Cansler, of Charlotte, for appellant.
O. Max Gardner, of Shelby, for appellee.
We will consider together the motion for judgment of nonsuit and the exceptions to the instructions to the jury, as both involve the contentions of the defendant that there is no evidence (1) that the dynamite caps were left on the ground by its employés, (2) that the place where the caps were found is a public place, (3) that the place or caps were likely to attract children, and that if there is evidence of these facts, they, and the other circumstances relied on by the plaintiff, were not sufficient to carry the case to the jury.
We will first reproduce parts of the evidence introduced by the plaintiff, and then undertake to apply it.
The plaintiff testified:
J. H. Leverette:
G. F. Sisk:
Charley Gardner:
Ed Wood:
Z. D. Barnett:
Mr. Kelley Moore:
The well referred to was being dug for use in connection with the house which the defendant was building for its superintendent.
This evidence was accepted by the jury, and it tends to prove: (1) That the well was being dug by the defendant. (2) That dynamite was used for that purpose. (3) That the dynamite was kept in an uncovered box. (4) That dynamite caps were left on the ground by the well. (5) That the well was not inclosed. (6) That it was within eight or ten steps of a much used path, within 75 yards of...
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