Beznor v. Howell

• Decision Date: 09 December 1930
• Citation: 233 N.W. 758,203 Wis. 1
• Parties: BEZNOR v. HOWELL ET AL.
• Court: Wisconsin Supreme Court

203 Wis. 1

233 N.W. 758

BEZNOR

v.HOWELL ET AL.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Circuit Court for Milwaukee County; S. E. Smalley, Judge. Affirmed.

Action commenced by Rose Beznor, by her guardian ad litem, plaintiff, on the 27th day of October, 1927, against the defendants, Ray Howell, Weimann Mask & Novelty Company, a Wisconsin Corporation, John Doe Rutter, alias, John Doe Lechler, alias, and Richard Roe, alias, individually and as copartners doing business as Rutter & Lechler, and Rutter & Lechler, a corporation, to recover damages for injuries sustained by her while playing with a sparkler on the 4th of July, 1926. From a judgment rendered on the 7th day of February, 1930, dismissing the plaintiff's complaint against all of the defendants, plaintiff appeals.

On the 4th day of July, 1926, the plaintiff was about seven and a half years of age. She resided with her parents in the city of Milwaukee a short distance from the home of defendant Howell. During the early evening of said day Rose came over to the Howell home, where she met her little playmate, Norma Jane, a daughter of Howell. Norma Jane was also about seven years of age. At the time Rose appeared in the front of the Howell home defendant Howell was sitting on his front porch, and was engaged in lighting sparklers for the entertainment of his daughter. He had procured a quantity of sparklers from his employer, who had purchased them from the Weimann Mask & Novelty Company (hereafter referred to as the “wholesaler”), who had theretofore purchased them from the defendant Rutter & Lechler (hereinafter referred to as the “manufacturer”). Mr. Howell lighted the sparklers and handed them to the children, Norma Jane and Rose, the plaintiff, who held them in their hands while they burned. It does not clearly appear just how many sparklers were thus handed to Rose prior to the accident. Mr. Howell testified that he gave her quite a number. While so engaged in lighting sparklers for the little girls, he cautioned both of them that the sparklers were hot and to hold them away from them because they were hot. Shortly thereafter Rose, who had two burning sparklers, one in each hand, started down the steps and up the street in the direction of her own home a short distance away. She was followed by Norma Jane. Both of the girls were hop skipping along the sidewalk with the burning sparklers in their hands. Mr. Howell called to them to come back, but they evidently did not hear him, as they continued up the street. While thus proceeding, the red-hot portion of one of the sparklers held in the hand of Rose came in contact with her dress, which was of flimsy material, ignited it, and, as a result, Rose was severely burned. The sparklers which Mr. Howell lighted and gave to the girls were the ordinary well-known sparklers which are in this day and age quite familar to adults and to children alike. It is conceded that, if sparklers are properly held in the hands while burning, they are entirely harmless. It appears without dispute that the flying sparks or stars, as they are sometimes called, are not hot and are incapable of burning even a delicate fabric. The human hands may be held close to and within the range of the flying sparks without danger of burning. It also appears that just at the point of burning from which the sparks are emitted or thrown off the steel or wire shaft becomes very hot, in fact red hot, which condition is clearly apparent to any one, be he child or adult. No claim is made by the plaintiff that the particular sparkler which ignited her dress was in any sense defective or different from the ordinary sparkler.

At the conclusion of the plaintiff's case, the court nonsuited the plaintiff in favor of the defendants “wholesaler” and “manufacturer.” As to the defendant Howell the trial proceeded, and the court submitted the issues as to him to the jury. The jury found that the defendant Howell did not fail to exercise ordinary care in giving burning sparklers to the plaintiff, and did not fail to warn the plaintiff that the sparklers were hot. The jury found that the plaintiff did not fail to exercise ordinary care under the circumstances. Upon the verdict as rendered, judgment for the defendants was entered, from which the plaintiff appeals.

Michael Levin, of Milwaukee, for appellant.

Bottum, Hudnall, Lecher, McNamara & Michael and John W. McMillan, all of Milwaukee, and Suel O. Arnold, of Madison, for respondents.

NELSON, J.

The plaintiff contends that the court erred in granting a nonsuit in favor of the defendants the “wholesaler” and the “manufacturer”; in instructing the jury as against the defendant Howell; and in rejecting certain evidence offered by the plaintiff.

The instruction complained of is as follows: “You are instructed that a sparkler of the type introduced in evidence is not an inherently dangerous instrument, but you are called upon to determine, under the facts and circumstances disclosed by the evidence, whether Mr. Howell failed to exercise such care as the great mass of mankind ordinarily exercise under the same or similar circumstances in giving to Rose Beznor the burning sparklers.” The plaintiff contends that the instruction just quoted was prejudicial and erroneous, in that the jury was told “that a sparkler of the type introduced in evidence is not an inherently dangerous instrument”; that it was error for the court to hold as a matter of law that a sparkler is not an inherently dangerous instrument and to so instruct the jury, because a sparkler is inherently dangerous is it affects children of tender years, and because it was the duty of the “manufacturer” and “wholesaler” to give necessary instructions as to their use and a warning as to their inherent dangers.

But two cases have been cited in which sparklers have been directly considered. The first case is Schmidt v. Capital Candy Company, 139 Minn. 378, 166 N. W. 502, 503. In this case a seven year old girl purchased from the defendant a “Clark Electric Sparkler Sucker.” The article was an ordinary six-inch sparkler having on its wire end a lump of taffy the size of a walnut. The child procured a match from the counter of the store, went outside, and lighted the sparkler. Her clothes in some manner took fire, and she was severely burned. It was contended in that case that by reason of the dangerous character of the sparkler she was entitled to recover. The court said: “While the mixture is a mild explosive, it is not an explosive in the sense that it is dangerous to person or property.” The court further held: “The law requires of him who deals in articles inherently dangerous in the use for which they are intended to refrain from placing the same in the hands of a child of tender years. If the child is too young to realize the character of the thing sold him, it is the duty of the dealer to refrain from selling him such article, and where such sales are made the seller is liable for the consequences naturally and proximately resulting therefrom. 11 Ruling Case Law, 704; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682;Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508. However, we do not think the article sold in the instant case so inherently dangerous as to render the seller liable, without proof of knowledge on his part of some concealed danger, not apparent from mere inspection. There is no such proof in this case. So far as we are advised by the record, the danger of setting off the sparkler is no greater than that which is found in the ordinary match, carelessly lighted.”

The second case cited is Henry v. Crook, 202 App. Div. 19, 195 N. Y. S. 642, 643, 644. In this case a child of seven years purchased a package of sparklers and took them home and showed them to her mother. She then took one of the sparklers out on the porch, lighted it, and, after it was burning, went into the room where her mother was. Thereafter she again went out on the porch and continued to make the sparkler “go around.” In some way her dress became ignited and she was burned. At the trial of said action the jury found that the sparkler was sold by defendant, that he was negligent in offering the sparkler for sale for use by children, and that the plaintiff and her mother were not guilty of any negligence. In sustaining the judgment, the court said: “It is not necessary for us in this case to hold, and we do not hold, that the sparkler itself was inherently or imminently dangerous. They are not more dangerous in themselves than the small firecracker or the ordinary match.” Notwithstanding the view of the court as expressed in the language just quoted, the court held: “These sparklers, however, were intended for the use of children of tender years, immature, who are not chargeable with understanding, sense of danger, and prudence--young children, who must be warned of danger.The legend upon the package was more a recommendation than a warning. A parent could very naturally get the impression that these were entirely harmless ‘safe and sane’ pieces of fireworks, to be used indoors or outdoors, and no danger could be suffered from their use, except, if one touched the glowing end, a burn would follow. The statement that they may be used indoors, where are usually rugs and carpets and other inflammable materials during the holiday time, would give one the impression that a fire could not be ignited by their use. The clothing of children is often sheer and easily...