Afflick v. Bates

• Citation: 21 R.I. 281,43 A. 539
• Parties: AFFLICK v. BATES, Treasurer.
• Decision Date: 01 May 1899
• Court: United States State Supreme Court of Rhode Island

43 A. 539

21 R.I. 281

AFFLICK

v. BATES, Treasurer.

Supreme Court of Rhode Island.

May 1, 1899.

Action by Thomas Afflick against Frank M. Bates, as treasurer of the city of Pawtucket. Decision in favor of defendant, and plaintiff excepts. Judgment on decision.

Hugh J. Carroll, for plaintiff.

James L. Jenks, for defendant.

MATTESON, C. J. The case shows that the explosive caps, by one of which it is alleged the plaintiff was injured, were kept by the city of Pawtucket in a large tool chest, which stood upon a vacant lot The caps themselves were inclosed in a box contained in a tin box, the cover of which was secured by a string. The tin box was placed on a shelf near the bottom of the tool chest. Shortly prior to the accident, somebody—it does not appear who—had opened the tool chest, and removed the string from the tin box, and taken out of the box within it some of the caps. The plaintiff and his brother, aged respectively 9 and 11 years, with other boys, were playing ball in a yard adjoining the vacant lot where the tool chest stood. The ball with which they were playing was thrown or knocked over the fence into the vacant lot, and the plaintiff and his brother went after it, and found two of the caps like those in the tool chest lying on the ground 10 or 12 feet distant from the chest. The plaintiff took one of the caps and his brother took the other. The latter gave his to another boy, named Nolan, 14 years of age, who was playing with them. The Nolan boy placed the cap on the curbstone, and dropped a stone upon It, whereupon it exploded with a loud noise. Particles of the exploding cap struck the plaintiff, who was standing a short distance away, and inflicted the injuries for which he sues. The negligence complained of is the leaving of the tool chest open and unguarded, so that access could be had to it by mischievous boys, and the explosive caps kept in it could be removed. Assuming that the cap by which the plaintiff was injured was one of those taken from the tool chest belonging to the city, we do not think that the city was bound to guard against the mischievous and unlawful acts of others in removing the caps, and therefore we do not think that it was guilty of the negligence alleged. Mahogany v. Ward, 16 R. I. 484, 17 Atl. 860. But, assuming that it was, the act of the boy Nolan in exploding the cap was, in our opinion, the proximate cause of the injury, intervening between the negligence of the city and the injury to the plaintiff,...