Finkbeiner v. Solomon

• Decision Date: 22 June 1909
• Citation: 225 Pa. 333
• Parties: Finkbeiner, Appellant, <I>v.</I> Solomon.
• Court: Pennsylvania Supreme Court

225 Pa. 333

Finkbeiner, Appellant,v.

Solomon.

Supreme Court of Pennsylvania.

May 4, 1909.

June 22, 1909.

Argued May 4, 1909.

Appeal, No. 74, Jan. T., 1909, by plaintiff, from order of C. P. Potter Co., Dec. T., 1906, No. 17, refusing to take off nonsuit in case of John Finkbeiner and Walter Finkbeiner, minor child of John Finkbeiner, v. A. Solomon.

Before BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ. Affirmed.

A. S. Heck, with him C. C. Vandeboe, for appellant.—In determining the defendant's liability the law relating to his duty in caring for dangerous and highly explosive substances, and the duty that he owed to children to protect them from danger should be considered: Rachmel v. Clark, 205 Pa. 314; Powers v. Harlow, 51 Am. Rep. 154; Hydraulic Works Co. v. Orr, 83 Pa. 332.

The cases in which Hydraulic Works v. Orr has been referred to and discussed are as follows: Gramlich v. Wurst, 86 Pa. 74; Gillespie v. McGowan, 100 Pa. 144; Schilling v. Abernethy 112 Pa. 437; Biddle v. Railway Co., 112 Pa. 551; Arnold v. Railroad Co., 115 Pa. 135; Westerberg v. Kinzua Creek, etc., Railroad Co., 142 Pa. 471; Corbin v. Philadelphia, 195 Pa. 461; Enright v. Railroad Co., 198 Pa. 166; Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326.

W. K. Swetland, with him W. F. DuBois, for appellee.— Where an independent intervening cause interrupts the natural sequence and causal connection between the original act of negligence and the injury, the intervening cause becomes the approximate cause and the author of the negligence is not liable: Herbstritt v. Lackawanna Lumber Co., 212 Pa. 495; Curtin v. Somerset, 140 Pa. 70; Bannon v. R. R. Co., 29 Pa. Superior Ct. 231; Fitzmaurice v. Fabian, 147 Pa. 199; Congregation v. Smith, 163 Pa. 561; Tutein v. Hurley, 98 Mass. 211; Gudfelder v. Ry. Co., 207 Pa. 629; Harriman v. Pittsburg, etc., Ry. Co., 45 Ohio, 11 (12 N. E. Repr. 451); Penna. R. R. Co. v. Hope, 80 Pa. 373; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Penna. R. R. Co. v. Kerr, 62 Pa. 353.

OPINION BY MR. JUSTICE POTTER, June 22, 1909:

This was an action of trespass brought by John Finkbeiner and his minor child, Walter Finkbeiner, against A. Solomon to recover damages for personal injuries alleged to have been sustained by Walter Finkbeiner through the negligence of the defendant.

In 1905, Finkbeiner purchased from Solomon a house and lot in Shingle House borough, Potter county, and also a frame barn located on another lot, which was moved by the purchaser to the lot previously bought by him, within a short distance of the house. At the time of the purchase of the barn, Finkbeiner did not have immediate use for it and he gave permission to Solomon to leave in the barn certain "stuff," boxes, wood and pails and a lot of different items, which were stored there. In October, Finkbeiner moved into the house, having previously given Solomon notice that he would need the barn. About October 9 or 10, Solomon moved out the greater part of his stuff from the barn, leaving only a few small items.

On October 15, 1905, Walter Finkbeiner, who was nine years old, was playing in the barn with some other children. One of them, a much younger child, found some dynamite caps, in a tin box, and the other children apparently appropriated them. The injured boy testified that he showed the caps to his mother, who thought they were exploded cartridges or bullets. The boy attempted with a stone to drive a nail through one of the caps, causing it to explode. Two fingers and the thumb of his left hand were so injured by the explosion, that amputation was necessary. At the trial of the case, a judgment of compulsory nonsuit was entered, which the court refused to take off. In his opinion, the trial judge says, "The defendant was rightfully using the barn for storage purposes. It cannot be said that the barn was an improper place to store the dynamite cartridges. There was no danger to be anticipated from the caps if not interfered with. It may be assumed that it was necessary to keep them in a dry place. He placed them where they were unlikely to be discovered." And he further adds, "Can it be said that the placing of a box two inches and two and one-half square, by one inch in depth, in a dark place upon a beam in a barn can be such negligence that the jury should be permitted to say that it was natural and probable that the children playing about the barn would discover it? But assuming that the jury should find that it was negligent in the defendant to leave them where he did, how can it be said that the injury to the plaintiff was the natural and proximate consequence of his act?" He then points out that the injury to the plaintiff, was brought about by the discovery and taking possession of the box of caps by another small boy, who turned it over to his playmates. The court says, "Had the box been left where it was put by the...