Hargis v. Paulsen

• Decision Date: 30 June 1917
• Citation: 166 P. 264,30 Idaho 571
• Parties: MURIEL HARGIS, an Infant, by BURGESS HARGIS, His Guardian ad Litem, Appellant, v. AUGUST PAULSEN et al., Copartners, Doing Business Under the Firm Name and Style of HERCULES MINING COMPANY, Respondents
• Court: Idaho Supreme Court

166 P. 264

30 Idaho 571

MURIEL HARGIS, an Infant, by BURGESS HARGIS, His Guardian ad Litem, Appellant, v. AUGUST PAULSEN et al., Copartners, Doing Business Under the Firm Name and Style of HERCULES MINING COMPANY, Respondents

Supreme Court of Idaho

June 30, 1917

INSUFFICIENCY OF EVIDENCE-MOTION FOR NONSUIT-WHEN GRANTED.

1. Where the evidence is so uncertain as to leave it equally clear and probable that the injury may have been caused by any one of several parties, and there is a total absence of proof that the injury was the result of the negligence or carelessness of the defendant, then a verdict would be pure speculation and could not be sustained and it would be the duty of the trial court to grant a nonsuit.

2. Held, that the trial court did not err in granting respondent's motion for a nonsuit, an examination of the record disclosing the fact that there was no evidence upon which a verdict for appellant could be sustained.

[As to mere scintilla of evidence as sufficient to justify submission of case to jury, see note in Ann.Cas. 1914B, 472]

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

Action for damages for personal injuries. Motion for nonsuit granted. Affirmed.

Judgment affirmed. Costs awarded to respondents.

John P Gray, and Therrett Towles, for Appellant.

A case was made out for the jury and the defendants are liable under the evidence. (Akin v. Bradley Engineering & Mach Co., 48 Wash. 97, 92 P. 903, 14 L. R. A., N. S. 586; Davis v. Wenatchee, 86 Wash. 13, 149 P. 337; Mathis v. Granger Brick & Tile Co., 85 Wash. 634 149 P. 3; Crabb v. Wilkins, 59 Wash. 302, 109 P. 807; Pittsburgh C. & St. L. R. Co. v. Shields, 47 Ohio St. 387, 21 Am. St. 840, 24 N.E. 658, 8 L. R. A. 464.)

One who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, is liable to a child non sui juris who is injured therefrom even though a trespasser. (Mattson v. Minnesota & N.W. R. Co., 95 Minn. 477, 111 Am. St. 483, 5 Ann. Cas. 498, 104 N.W. 443, 70 L. R. A. 503.)

C. W. Beale and John Wourms, for Respondents.

"Evidence that leaves the jury to roam at will in the field of conjecture and speculation to find a verdict can no more be tolerated by courts of justice than a judgment without any evidence." (Bowen v. Illinois Cent. R. Co., 136 F. 306, 69 C. C. A. 444, 40 L. R. A. 915; Holt v. Spokane etc. Ry. Co., 4 Idaho 443, 40 P. 56; Sherman v. Menominee River Lumber Co., 77 Wis. 14, 22, 45 N.W. 1079.)

The plaintiff has not brought himself within the rule as laid down by any of the decisions cited in his brief upon the question of explosives. In the following cases recovery was not permitted where the defendants had been connected affirmatively with the instrumentality causing the injuries, a condition entirely wanting in the case at bar. (Obertoni v. Boston & M. R. R., 186 Mass. 481, 71 N.E. 980, 67 L. R. A. 422; Afflick v. Bates, 21 R. I. 281, 79 Am. St. 801, 43 A. 539; Hughes v. Boston & M. R. R., 71 N.H. 279, 83 Am. St. 518, 51 A. 1070.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

This is an action for damages for personal injuries alleged to have been sustained by the appellant through the negligence of the respondents. The case was tried by the court and a jury. At the close of the appellant's evidence respondents made a motion for a nonsuit, on the ground that appellant had failed to make out a sufficient case for the jury, for the reason that there was no proof connecting respondents with the alleged acts of negligence which caused the injury. The trial court sustained the motion and rendered judgment, dismissing the action. This appeal is from the judgment.

Appellant's brief contains six separate assignments of error. We will confine our discussion to assignments Nos. 5 and 6, as the view we have taken of the case renders it unnecessary to express an opinion on the first four assignments. Assignments Nos. 5 and 6, are as follows:

"V. The court erred in granting the motion of the defendants for a nonsuit.

"VI. The court erred in entering a judgment of dismissal of said action."

It will be seen that these two assignments involve but one point, that is, whether or not appellant made out such a case, as would entitle him to have it submitted to the jury.

The facts elicited upon the trial and upon which appellant relies are as follows: On August 16, 1913, Eldon Hargis, eight years of age, in company with his two little brothers, Fred aged five and appellant aged three, started from their home afoot to meet their father, Burgess Hargis, in whose name this action was brought, and who was then in the employ of the respondents in their mine. They were overtaken by a Mr. Spekker and rode up the hill along the public road in the direction of the mine, on his wagon. At a point along the road by the Hercules property, Eldon saw some primers, made by attaching a piece of fuse to a dynamite cap, lying at the side of the road by a rock, a short distance from the wheel-track. Shortly thereafter the children came back and Eldon picked up the primers and he and his two little brothers took them down to a property, known as the lower Stanley, where Eldon lighted the fuse on one of them with a candle; the cap exploded, and as a result of...