Butrick v. Snyder

• Decision Date: 04 October 1926
• Docket Number: No. 13,June Term.,13
• Parties: BUTRICK v. SNYDER et al.
• Court: Michigan Supreme Court

236 Mich. 300

210 N.W. 311

BUTRICK

v.SNYDER et al.

No. 13, June Term.

Supreme Court of Michigan.

Oct. 4, 1926.

Error to Circuit Court, Washtenaw County; George W. Sample, Judge.

Action by Harold O. Butrick, an infant, by Lloyd E. Butrick, his next friend, against Clinton J. Snyder and others, copartners doing business under the firm name of C. J. Snyder & Sons, and the Artificial Stone Company. Judgment for plaintiff against the corporate defendant only, and it brings error. Affirmed.

Argued before SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. George E. McArthur, of Eaton Rapids, and Edmund C. Shields, of Lansing, for appellant.

J. N. Sampson, of Adrian, and John P. Kirk, of Ypsilanti, for appellee.

SHARPE, J.

The defendant Artifical Stone Company took a contract for building 9 1/2 miles of the highway known as ‘M 50’ from near Tipton in Lenawee county to the Jackson county line. It let the job of grading to the defendant C. J. Snyder & Sons, of Ann Arbor, who began work in the spring of 1920, and finished a year later. Some dynamite was used in the grading. The gravel was put on by the stone company. The grade settled at a place near a schoolhouse known as the Grubb school, and the stone company filled it in, under special contract with the highway department. In doing this work, and also in breaking up a large stone on the road, it used dynamite. This work was done in August, 1921.

The schoolhouse is located on the north side of the highway. The land across the road was at that time unoccupied, trees and underbrush having grown up thereon. A tool shed and some other old buildings were on this land at a place about 600 feet from the school and about 150 feet back from the highway. These premises were owned by Sidney Kimball. The pupils attending the school had been permitted by the teacher the year before to cross the road and play on this land. One of them, Harold O. Butrick, aged 9 years, and another boy named Arnold Rogers, aged 11 years, were given such permission on November 16, 1921. They went into the tool shed, the front of which was open, and discovered some dynamite caps in a box on a shelf. The boys did not know what they were. Plaintiff broke one of them by placing it on a stone and pounding it with another. The bell then rang, and they went to the school. At the afternoon recess, plaintiff got some matches and laid the other cap on a stone in the schoolhouse yard and lit the end of it. An explosion followed. Plaintiff's eyes and hands were badly injured. One eye was removed, and he has little sight in the other. Some of his fingers were amputated.

In this action plaintiff, by his father as next friend, seeks recovery for the injuries sustained from both C. J. Snyder & Sons and the Artificial Stone Company. Both defendants moved for directed verdicts. These motions were taken under advisement under the Empson Act (Pub. Acts 1915, No. 217) and the cause submitted to the jury, resulting in a verdict in favor of the defendant C. J. Snyder & Sons and against the defendant Artificial Stone Company in the sum of $10,000. The stone company renewed its motion for judgment notwithstanding the verdict, and also moved for a new trial. Both motions were denied. It here reviews the judgment entered against it on the verdict by writ of error.

The defendant Snyder & Sons offered proof that no dynamite or caps were ever placed by them in the tool shed. There is also proof that, shortly before the work on the highway was begun, Mr. Kimball and one of his employees, Charles W. Card, removed the tools from the shed. Card testified:

‘If there had been any dynamite caps in the shop, I think I would have seen them, if they were on that little shelf they speak of, because we removed stuff from the shelf. I never knew of Mr. Kimball using dynamite.’

The defendant stone company offered no proof.

1. It is insisted that:

‘There is no proof in the case that the appellant Artificial Stone Company ever owned the caps in question, or ever placed dynamite or caps where the caps in question were found.’

The dynamite caps were found by the boys in the tool shed. Some person must have put them there. The verdict is conclusive that the jury found that they were not left in the shed by either the owner of the premises or Snyder & Sons. One of defendant's employees who worked on the job of ‘filling in,’ heretofore referred to, testified that dynamite and caps were then used. It is conceded that, if they were so used, they were furnished for that purpose by the stone company. The record is silent as to the quantity furnished, whether they were all used, or what was done with those not used. There is proof that, while engaged in this work, the stone company's employees occupied a tent which they had put up on Kimball's land near the tool shed in which the caps were found by the boys. The plaintiff testified that he and Arnold went there to play ‘just a little bit after the tent was gone.’

[2] While it is true that a verdict may

not rest upon bare conjecture (Fuller v. Ann Arbor Railroad Co., 141 Mich. 66, 104 N. W. 414), it is also true that a finding as to a particular fact may be based upon inferences fairly drawn from other facts established by proof. Waidelich v. Andros, 182 Mich. 374, 148 N. W. 824. The burden was on the plaintiff to prove that the dynamite caps were left in the tool shed by defendant's employees. If unable to furnish positive evidence of this fact, he might establish it by circumstantial proof of such a nature as would create a probability sufficiently strong to lead the jury to conclude that such was the fact. Dunbar v. McGill, 64 Mich. 676, 31 N. W. 578. The reasonable inferences which may be drawn from the affirmative facts proven are evidence, and not presumptions.

Applying these rules to the proofs submitted, we are of the opinion that the finding of the jury that the dynamite was left in the shed by the stone company did not rest on conjecture.

2. Negligence of Defendant. In Powers v. Harlow, 53 Mich. 507, 516, 19 N. W. 257, 260 (51 Am. Rep. 154), wherein a child was injured by the explosion of a dynamite cap left in an uncovered box under a shed on a farm, it was said:

‘A man of ordinary prudence, if told that so dangerous an article was so carelessly stored, might well have deemed the statement incredible.’

That the employees of the stone company were negligent in leaving these caps where they were found by the boys cannot be questioned.

3. Duty of the Defendant Stone Company. It is insisted that these boys were trespassers when they entered the tool shed, and for that reason the stone company owed no duty to the plaintiff to protect him from the danger incident to the use of the dynamite caps.

This court is committed to the doctrine that where there is no legal duty there can be no actionable negligence. It has been applied in cases of adult persons who were trespassers, and as to whom the defendants owed no duty to keep the premises on which the injuries occurred in a condition reasonably safe for occupancy. McCaughna v. Electric Co., 129 Mich. 407, 89 N. W. 73,95 Am. St. Rep. 441;Parshall v. Lapeer Gas-Electric Co., 228 Mich. 80, 199 N. W. 599.

The shed in which these caps were left was open and on an unoccupied and unfenced piece of land, containing much brush and small timber. This land was directly across the road from the schoolhouse. It was a natural playground for the children attending the school. They were not, however, permitted to go there without the consent of the teacher. The year before she had frequently accompanied them on walks over this land and around the buildings. Consent that these boys might play across the road on the...