Fisher v. Burrell

• Decision Date: 24 November 1925
• Citation: 241 P. 40,116 Or. 317
• Parties: FISHER v. BURRELL ET AL.
• Court: Oregon Supreme Court

241 P. 40

116 Or. 317

FISHER v. BURRELL ET AL.

Supreme Court of Oregon, En Banc.

November 24, 1925

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Action by Allen Fisher, a minor child, by Bertha Fisher, his guardian ad litem, against R. C. Burrell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

This is an action for damages on account of personal injuries that resulted to the plaintiff from the explosion of a dynamite fulminating cap. Judgment went for defendants, and plaintiff appeals.

The plaintiff was a boy about nine years old. At the time of the accident he was living at the home of his parents at Hillsdale, a suburb of Portland, Or. The defendants, Burrell were adjacent neighbors. There was a beaten path between the two places and the wire fence between was fixed for easy passage. There was a well on the premises of Fishers, but the Burrells had no water on their premises. They employed defendant Woolridge to dig a well for them on their lot of about two acres. The premises of the plaintiff's parents consisted of about one-half an acre.

The negligence is alleged as follows:

"On said 3d day of June, 1920, at about 1 o'clock in the afternoon, while plaintiff was on the premises of his parents, and while defendants were engaged in the work of excavating for said well, defendants called to plaintiff and asked plaintiff to bring them a pail of water. Plaintiff thereupon complied with this request and carried water from his own home to the premises of the Burrells and delivered the water to defendants.

"While the defendants were thus engaged in the work of excavating for a well, they carelessly and negligently kept and placed, and caused and permitted to be kept and placed upon the premises where they were working, a quantity of dangerous explosives, to wit, a number of dynamite fulminating caps, and carelessly, recklessly, and negligently left said dangerous explosive sticks unguarded unprotected, and exposed on said premises.

"Defendants well knew and appreciated, at all times material to this action, that said caps were highly dangerous and exploded easily and were naturally attractive and enticing to children, and that children, including plaintiff, would naturally be attracted and enticed into handling and playing with them, and defendants well knew and appreciated that a child would naturally and in the ordinary course of events see and find such dynamite caps and would be attracted and enticed into playing with and handling and manipulating said caps so as to cause them to explode;" that plaintiff found one of said dangerous explosive caps which had been carelessly permitted to lie on the ground, carried it to the premises of his parents where it exploded, causing injuries to him.

Defendants R. C. Burrell and Cora Burrell, his wife, filed an answer admitting the ownership of the premises, in Mrs. Burrell that Woolridge was engaged in constructing a well, and admitted the fact of the plaintiff's injury, denying the other allegations of the complaint.

These defendants further pleaded, in effect, that the defendant Bert Woolridge was engaged as an independent contractor to dig the well. Further answering, these defendants aver that Woolridge in carrying on the work used certain explosives for blasting, to wit, fuse caps, which were kept in a box in an earthen jar, and the earthen jar placed about three or four feet from the ground in a garage on said premises, and the door of said garage was closed and securely fastened so that any person could not enter without forcibly opening the door.

The plaintiff had been repeatedly warned by defendants that the explosives were in the garage and not to enter the same, or to come upon the premises where the garage was located, or where the well was being dug. That if plaintiff procured an explosive upon the premises of these defendants by which he was injured, he came into the possession of the same wrongfully and unlawfully, and without invitation, contrary to the will and instruction of these defendants, by entering upon the premises and wrongfully and stealthily entering the garage, by wrongfully removing the fastening and taking the cap out of the box on the shelf.

For a third further and separate answer these defendants aver, in effect, that on the day of the accident, the mother of the boy was warned by the defendant Cora Burrell that she was going away from home for the afternoon; that her husband was sick and confined to the house, and directed the mother of plaintiff to keep him off the premises during her absence that the mother of plaintiff carelessly and negligently permitted the plaintiff to enter the premises and the garage and take the fuse cap, if it was taken.

These defendants further aver that the accident was wholly due and brought about by the negligence and carelessness of the plaintiff through no fault and negligence of the defendants.

The defendant Woolridge answered to much the same effect as the other defendants, except as to the allegations respecting an independent contractor; averring that plaintiff was repeatedly warned by this defendant in regard to the explosives; that the negligence on the part of the mother in permitting the plaintiff to enter the premises was imputed to plaintiff.

Replies were filed putting in issue the new matters of the answer, except so far as consistent with the complaint.

The testimony, on the part of plaintiff, tended to support the main allegations of plaintiff's complaint and to show that while the well digging was under way, the boy went frequently upon the Burrell premises. He went there on the 3d day of June, 1920. According to his statement, defendant R. C. Burrell called him to bring a pail of water from the Fisher well. On this occasion, as he was returning home from the Burrell house, he picked up, on the Burrell premises, near the well, a dynamite fulminating cap. He had never seen such a cap. He thought it was a whistle. He carried it to a shed of his own home intending to hammer it into the shape of a ring. The explosion that followed the first blow of the hammer maimed his right hand.

John F. Logan, J. J. Fitzgerald, and Fred Heilig, all of Portland, for appellant.

Collier, Collier & Bernard, of Portland, for respondents.

BEAN, J. (after stating the facts as above).

The plaintiff assigns eleven errors in the instruction of the court to the jury. The plaintiff complains that the trial court ignored the allegations of an attractive nuisance and instructed the jury not to return a verdict for plaintiff, unless plaintiff proved an express invitation to enter on the premises.

The defendants contend that the plaintiff was a trespasser upon the premises, the care of which devolved upon the defendants and they owed him no duty, except that of not inflicting any wanton or reckless injury, citing and relying, among others, upon the cases of Riggle v. Lens, 71 Or. 125, 128, 142 P. 346, L. R. A. 1915A, 150, Ann. Cas. 1916C, 1083; and Haynes v. Ore. Wn., etc., Co., 77 Or. 236, 244, 150 P. 286.

After reciting and explaining the issues of the case, the court charged the jury, in part, as follows:

"* * * If the plaintiff recovers at all in this case, it must be based upon the particular charge of negligence alleged in the complaint, to wit, by leaving exposed on said premises a dynamite fulminating cap, and that while it was so exposed, the plaintiff was invited by the defendants to come upon said premises where said danger exists, and if you find that the defendants left exposed upon said premises fulminating caps of dynamite as alleged in their complaint within itself would not be sufficient for you to find a verdict for the plaintiff, even though you found that the plaintiff was on said premises to pick said fulminating cap of dynamite up and carried it away and exploded it and was injured thereby, unless you further find that the plaintiff was on said premises by the express invitation of the defendants."

The court also instructed the jury:

"I instruct you, gentlemen of the jury, that a landowner is not liable for damages to an infant trespasser for injuries arising from an unguarded, open and unconcealed danger on his land. * * * The liability in such cases is no different from the liability due an adult."

And further:

"* * * You are further instructed, gentlemen of the jury, that if the defendants objected to the plaintiff coming upon said premises while said work was being carried on, and did everything that was reasonably possible for them to do under the circumstances to prevent this child from trespassing upon said premises, then there would be no invitation express or implied."

The law relating to explosives, which seem to be in a class by themselves, is laid down in 25 C.J. p. 186, § 11, in substance as follows:

One keeping or storing explosives in a place to which children may have access will, since such articles are naturally attractive to children, be held to a corresponding degree to protect them from injury, and a failure to exercise such care will impose liability. Where the place of storage or use is readily accessible to the children, corresponding care must be exercised, although they may not have been in the habit of frequenting the place, nor need liability rest upon the doctrine of attractive nuisance. But no liability arises for injuries to children where the explosives have been guarded with reasonable care, or left where there was no reason to anticipate meddling.

In 25 C.J. p. 186, note 60, we read the language of Chief Justice Cooley, in the opinion in Powers v. Harlow, 53 Mich. 513, 19 N.W. 257, 51 Am. Rep. 154:

"Children, wherever they go, must be expected to act upon childish instincts

...