Akin v. Bradley Engineering & Machinery Co.

• Decision Date: 16 December 1907
• Citation: 48 Wash. 97,92 P. 903
• Court: Washington Supreme Court
• Parties: AKIN v. BRADLEY ENGINEERING & MACHINERY CO.

92 P. 903

48 Wash. 97

AKIN v. BRADLEY ENGINEERING & MACHINERY CO.

Supreme Court of Washington

December 16, 1907

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action by Charles A. Akin, by Rufus L. Akin, his guardian ad litem against the Bradley Engineering & Machinery Company. From a judgment dismissing the action, plaintiff appeals. Reversed and remanded.

Where a boy of 11 found a dynamite cap and an electric battery, and exploded the cap by means of the battery, whereby he was injured, and he did not know the force of the explosive, or know, for a certainty, that the electricity would explode it he was not guilty of contributory negligence.

Merrill Oswald & Merrill, for appellant.

M. A Folsom and B. B. Adams, for respondent.

ROOT J.

Plaintiff brought this action to recover damages for personal injuries sustained by the explosion of a dynamite cap. When the case was called for trial, plaintiff's attorney made an opening statement to the court and jury of the facts of the case as plaintiff intended to establish them. At the conclusion of his opening statement and before any evidence was taken, the defendant moved for a judgment of dismissal upon such statement, which motion was granted and the case dismissed. From the judgment, this appeal is prosecuted.

The opening statement of the attorney showed these facts: The respondent was a corporation engaged in selling mining machinery, appliances, and supplies, among which were dynamite caps; that the last named are highly explosive, and are used to explode dynamite in mining operations; that respondent had thrown a large number of these caps out back of its place of business upon some vacant ground through which a pathway ran that was used by large numbers of children going to and from a public school situated nearby; that these caps were very attractive to children, and that these school children were in the habit of picking them up and afterwards throwing them against rocks or in other ways exploding them; that on the way from school one day this plaintiff picked up several of these cartridges, and on his way threw several of them at rocks, endeavoring to explode them; that he and another boy discovered some dry batteries in an alley near an automobile garage, and proceeded to make an experiment of touching off the cap with the battery, whereby said cap did explode, and tore off a thumb and finger from plaintiff's hand; that the respondent knew of the presence of these explosives, and of the fact that school children were passing and repassing near where they were almost daily, and that the same were naturally attractive to children, and that the latter were liable to be injured thereby; that plaintiff was only 11 years of age, and did not know for a certainty that a battery would explode the cap, and did not know the force of the explosive or the extent of the injury that might result from such explosion.

The only question...