Bosserman v. Smith
| Decision Date | 08 November 1920 |
| Citation | 226 S.W. 608,205 Mo.App. 657 |
| Parties | WILLIAM GLENN BOSSERMAN, by WILLIAM E. BOSSERMAN, his Next Friend, Respondent v. WILLIAM P. SMITH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clay County Circuit Court.--Hon. Frank P. Divelbiss Judge.
AFFIRMED.
Judgment affirmed.
Robert T. Stephens and Martin E. Lawson for respondent.
Craven & Bates and Ernest G. Simrall for appellant.
Plaintiff, a minor, brought this action, through his next friend, to recover of defendant damages for an injury to his face and eyes caused by the explosion of a certain piece of fireworks known as a "mine," which was known by defendant to be highly inflammable, explosive and dangerous to children, and which it is alleged the defendant negligently sold to said minor and negligently failed to warn him of its dangerous character.
The evidence adduced in plaintiff's behalf amply tended to show that plaintiff, a boy, eight and one-half years old, in company with a little girl as immature as he, on the 4th of July, 1917, went into defendant's store in Excelsior Springs and, seeing a red cylinder about 10 inches high, 2 1/4 inches in diameter with a wooden base 2 1/2 inches square, asked the clerk what it was and he informed them it was "red fire." It seems that "red fires" are a kind of fireworks which, when ignited and set down, burn with a beautiful, small red light but which do not explode or send up flames to any distance therefrom. Desiring to buy some "red fires" the children asked the price of it and were told it was 25 cents. They had 30 cents between them and they bought it and with their remaining nickel bought some little "red fires." The 25-cent article, however, was not a "red fire" at all, but a thing known in fireworks parlance as a "mine" which, when fired, explodes and throws a stream of fire high into the air, an exceedingly dangerous thing for children to have, well known to be such, and which the clerk and defendant knew, or should have known, was very dangerous. No warning was given to the children of its dangerous character, however, and they were allowed to take the "mine" away from the store, thinking and believing that it was a "red fire" as the clerk had told them. The children took it to where they were playing and where they were having some "sparklers" and other small but harmless fireworks, the former of which when ignited merely sparkled and the latter merely gave off a little popping noise when stepped upon. There was a fuse attached to the "mine" and this the children lighted and it burned down to the cylinder and then went out. After playing with their "sparklers" awhile, plaintiff, while standing over the "mine" or "red fire," as he thought it was, stuck a sparkler into the end thereof, whereupon it exploded and threw an intense flame upward severely burning his face and eyes and injuring his sight.
There is no question but that the "mine" was an exceedingly dangerous article to be placed in the hands of a child of tender years, and it is well established that the sale of such an article to such a child is an actionable wrong for which the seller will be held liable in case damage results to the child as a proximate consequence thereof. [Binford v. Johnston, 82 Ind. 426; McEldon v. Drew, 138 Iowa 390, 116 N.W. 147; Carter v. Towne, 98 Mass. 567; Osborne v. McMasters, 40 Minn. 103, 41 N.W. 543.]
The petition undoubtedly stated a cause of action and the proof amply supported it and made out a case.
It is urged that the selling of the mine was not the proximate cause of the injury, but clearly it was. This is a case where the article sold was inherently dangerous, and placed in the hands of a child who not only did not know its dangerous character but was told that it was "red fire" which was not explosive or dangerous and the harmless character of which the boy well knew. The injury...
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