Daugherty v. Hippchen, Record No. 2155.

• Decision Date: 26 February 1940
• Docket Number: Record No. 2155.
• Citation: 175 Va. 62
• Parties: LILLIAN V. DAUGHERTY, ADM'X, ET AL. v. JACK HIPPCHEN, WHO SUES, ETC.
• Court: Virginia Supreme Court

Page 62

175 Va. 62

LILLIAN V. DAUGHERTY, ADM'X, ET AL. v. JACK HIPPCHEN, WHO SUES, ETC.

Record No. 2155.

Supreme Court of Virginia, Richmond.

February 26, 1940.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. APPEAL AND ERROR — Law of the Case — Instructions Given without Objection. — Where the issues of the negligence of the defendant and the contributory negligence of the plaintiff were submitted to the jury under instructions to which there were no exceptions, the law as given to the jury by the court is conclusively presumed to be correct and can not be questioned in the Supreme Court of Appeals.

2. EXPLOSIONS AND EXPLOSIVES — Liability for Injury — Degree of Care Required Is Relative. — The degree of care required of one who keeps or stores explosives is relative and care must be taken in proportion to the danger involved. The care required in such cases is greater than that required where the article stored is harmless.

3. EXPLOSIONS AND EXPLOSIVES — Liability for Injury — High Degree of Care Required. — Those who keep explosives must exercise a high degree of care to the end that injuries may not be inflicted.

4. EXPLOSIONS AND EXPLOSIVES — Liability for Injury — Children — May Depend upon Age. — Liability of one storing explosives for injury caused by such explosives may exist where a child of tender years is involved and not exist in the case of a child of more mature years.

5. EXPLOSIONS AND EXPLOSIVES — Liability for Injury — Children — Where Immature Child Is Trespasser. — Even if an immature child is a trespasser, one who stores explosives or has control of other dangerous instrumentalities is not relieved of the duty of exercising a proper degree of care for his protection.

6. EXPLOSIONS AND EXPLOSIVES — Electricity — Liability for Injury — Children — Care Required Where Children Are Accustomed to Play. — Explosives are equally deadly as electric current and both should be guarded and controlled with utmost care and caution, especially when it is known or should be known that children of tender years are accustomed to play at or near these dangerous instrumentalities and are likely to gain access to them.

7. EXPLOSIONS AND EXPLOSIVES — Liability for Injury — Children — Sufficiency of Evidence to Show Negligence — Case at Bar. — In the instant case, an action for injuries sustained by a child eight years of age from the explosion of a dynamite cap procured by him from a tool house belonging to defendant, the evidence showed that defendant insecurely stored dynamite, dynamite caps, etc., in the tool house, the door of which was left open nearly all the time. Defendant actually knew that children of tender years frequently played in the vicinity of the house and that they would be likely to go into the tool house. The jury determined that defendant was engligent and that plaintiff was free of contributory negligence.

Held: That the evidence was sufficient to support the finding of the jury.

Error to a judgment of the Circuit Court of Arlington county. Hon. Walter T. McCarthy, judge presiding.

The opinion states the case.

William C. Gloth, John Locke Green and William C. Gloth, Jr., for the plaintiffs in error.

Harry A. Shockey and Wilson M. Farr, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

This case arose out of an injury sustained by Jack Hippchen, plaintiff below, from the explosion of a dynamite cap procured by him from property owned by Theodore B. Daughtery, the defendants' intestate. From a verdict and judgment for the plaintiff, the defendants have obtained a writ of error.

The facts, in the light of the verdict for the plaintiff, may be stated as follows: Daughtery had leased a piece of property in Arlington, Virginia, to Mrs. Ella S. Waters, reserving to himself the use of a tool house located near the rear of the property. Upwards of a dozen children lived in the immediate neighborhood, and were accustomed to romp and play throughout the nearby property. A favorite haunt was a wooded patch, or "grove," as several witnesses referred to it, which was close to the tool house on Daugherty's property. This tool house was used as a repository of various building materials and supplies, including dynamite and dynamite fuse caps. The door of the tool house was left open nearly all the time. The lot on which the tool house stood was not fenced on either side, and had only a dilapidated chicken-wire fence at the back. Hence the children had no difficulty in gaining access to the vicinity of the tool house. They played there often, although the lessee, Mrs. Waters, and her daughter, in the interest of peace and quiet, had occasionally asked them to go elsewhere. Daugherty knew that the children played there, but gave them no warning to stay away.

On September 6, 1936, the plaintiff, eight years of age, his younger brother, aged seven, and another child, aged five, were playing in the grove, and the plaintiff went into the tool house through the open door. It appears that none of the children had actually entered the tool house before. The plaintiff noticed a tin box on the floor, opened it, and carried away several of the bright metallic objects it contained. These objects were dynamite caps, but their nature was unknown to any of the children. Plaintiff gave several of them to his playmates and took the rest home in his wagon. That evening at his home he was picking at one of the caps with a pin when it exploded, causing the injury complained of. Extensive medical treatment was necessary, including amputation of all fingers on the left hand except the index finger.

...