Kennedy v. Independent Quarry & Construction Co.

• Decision Date: 16 February 1927
• Docket Number: 25434
• Citation: 291 S.W. 475,316 Mo. 782
• Parties: Leslie Raymond Kennedy, Appellant, v. Independent Quarry & Construction Company
• Court: Missouri Supreme Court

291 S.W. 475

316 Mo. 782

Leslie Raymond Kennedy, Appellant, v. Independent Quarry & Construction Company

No. 25434

Supreme Court of Missouri

February 16, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Affirmed.

Hay & Flanagan and Hensley, Allen, Moore & Fitch for appellant.

(1) The evidence adduced by plaintiff sufficed to make out a case of actionable negligence against the defendant. When defendant brought to and kept upon its premises high and dangerous explosives, it was its duty to use the highest degree of care, the utmost caution and diligence, as to the care and custody thereof, in order to restrain or confine such dangerous agency. It was clearly negligence on defendant's part to leave such highly dangerous explosives, attractive to youths, lying exposed in a dilapidated open shed on its premises, where boys were in the habit of coming with defendant's knowledge and acquiescense; making defendant liable for the injury to plaintiff which naturally and proximately resulted from such negligence when the explosive in question was taken from defendant's premises, where boys were in the habit of coming with defendant's was caused to explode in plaintiff's presence. Diehl v. Fire Brick Co., 299 Mo. 641; Olsen v. Inv. Co., 58 Wash. 151; Clark v. Powder Co., L. R. A. 1915E, 479; City of Lubbock v. Bagwell, 206 S.W. 371; Juntti v. Min Co., 119 Minn. 518, 42 L. R. A. (N. S.) 840; Akin v Eng. & Machine Co., 48 Wash. 98; Gerber v. Kansas City, 304 Mo. 157; Vills v. Cloquet, 119 Minn 277; Crabb v. Wilkins, 59 Wash. 302; Moore v. Light, Heat & Power Co., 163 Mo.App. 266; Sandeen v. Tschider, 205 F. 252; Mattson v. Minnesota Ry. Co., 70 L. R. A. 503; Powers v. Harlow, 55 Mich. 515; Nelson v. McClellan, 31 Wash. 208; Harriman v. Railroad, 45 Ohio St. 11; Travell v. Bannerman, 75 N.Y.S. 866; Mathis v. Granger Mining Co., 85 Wash. 634; Cincinnati Ry. Co. v. Padgett, 158 Ky. 301; Eckart v. Kiel, 123 Minn. 114; Miller v. Chandler, 168 Ky. 606; Barnett v. Cliffside Mills, 167 N.C. 576. (2) The evidence adduced by plaintiff fully warrants the finding that the negligence of the defendant was the proximate cause of plaintiff's injury. The act of Schneider, in taking the cap and fuse from the quarry to the lot where the cap exploded, and the act of Kaufmann in lighting the fuse and placing it in the cap, did not break the causal connection between defendant's negligence and plaintiff's injury; but were, at most, concurring acts of negligence. Diehl v. Fire Brick Co., 299 Mo. 656; Olsen v. Inv. Co., 58 Wash. 151; City of Lubbock v. Bagwell, 206 S.W. 371; Vills v. Cloquet, 119 Minn. 277; Moore v. Light Co., 163 Mo.App. 266; Mathis v. Mining Co., 85 Wash. 642; Clark v. Powder Co., 94 Kan. 268.

Watts & Gentry for respondent.

(1) There was no evidence tending to show that any person, acting in the scope of his employment as a servant of the defendant, placed and left the box of dynamite caps where Schneider found the same. Lioni v. Granite Co., 149 N.E. 147; C. & O. Ry. Co. v. Rogers, 237 S.W. 18. (2) The act of leaving the dynamite caps in the shanty was not an act of negligence, in view of all the circumstances surrounding the leaving of the same at that place. The shanty where the caps were found was more than a hundred feet below the surface of the ground, far removed from any public street, and at a place where the plaintiff and his companions had no right whatever to go. Therefore, the defendant was not legally liable, even if the placing of the caps at that point was done by the defendant and was careless. The sole duty to a trespasser or a bare licensee (and plaintiff was a trespasser) is not to willfully injure him after his presence is known. He takes the premises as he finds them, and cannot recover for injuries sustained because of the dangerous condition of the premises or the presence of dangerous objects there, except in such cases as those where trespassers are expected and spring guns or traps are deliberately set for the purpose of inflicting injury upon them. Kelly v. Benas, 217 Mo. 1; Glaser v. Rothschild, 221 Mo. 184; Barry v. Corn Assn., 106 Mo.App. 358; Shaw v. Goldman, 116 Mo.App. 332; Straub v. Soderer, 53 Mo. 38; Davis v. Ringolski, 143 Mo.App. 364; Berry v. Hemp & Co., 191 S.W. 1038; Roe v. Ind. Packing Co., 203 Mo.App. 11; Rollo v. Cons. Co., 236 S.W. 632; United Zinc Co. v. Britt, 258 U.S. 268. Defendant could not be required to foresee that it would be likely or reasonably probable that young men would carry dynamite caps away and play with them in a reckless manner as Schneider and Kauffman did. A bare possibility of such an occurrence would not make defendant liable. Stone v. Boston & Albany Railroad, 171 Mass. 536. (3) The defendant cannot be held liable on the theory that it negligently permitted dangers peculiarly attractive to children to exist upon its premises. Plaintiffs have sometimes been permitted to recover under the doctrine of the turntable cases, but that doctrine applies at best only in cases where very young children are injured. It can have no application to a case where young men who were almost old enough to be voters (like Schneider, Kauffmann and plaintiff and his companions) were involved. There was no causal connection between the leaving of the dynamite caps in the shanty at the bottom of the quarry, far removed from any place where the public had a right to be, and the injury to the plaintiff, because a person of mature years, education, experience, discretion and judgment (Schneider) deliberately stole one of the caps and carried it far away from the defendant's premises and subsequently turned it over to another person (Kauffman), who was almost of full age (lacking but seven months), and he negligently exploded the cap, thus inflicting injury upon the plaintiff. In some cases some of the courts have held defendant liable where very young children, who have not arrived at years of discretion, stole some dangerous objects and carried them away and caused injury; but many other courts hold to the rule that even in cases where young children steal such objects, the action of the child who thus trespasses and commits larceny and subsequently sets off an explosive is the proximate cause of the injury and completely breaks the causal connection between the leaving of explosives or other dangerous substances in an unguarded condition and the happening of injury. This is doubly true where the person committing the trespass and the theft is not a child of tender years, but is old enough to know the difference between right and wrong, as Schneider did, and where, with the knowledge that stealing was wrong (which he admitted he had, he being an experienced Sunday school scholar and crap shooter), he stole the cap, and another person (Kauffman), still older, negligently and deliberately exploded the same. The natural and continuous sequence was broken, hence, that proximate cause was not the leaving of the dynamite caps in the quarry. Kane v. Railroad, 251 Mo. 27; Jaquith v. Plumbing Co., 251 S.W. 91; Thornton v. Ionia Fair Assn., 200 N.W. 958; Kidder v. Sadler, 103 A. 159; Hale v. Pac. Tel. Co., 183 P. 280; Stone v. Railroad, 171 Mass. 356; Bradley v. Thompson, 223 P. 572; King v. Smart, 240 Mass. 574; Flaherty v. Metro. Stations, 196 N.Y.S. 2; Horan v. Town of Watertown, 104 N.E. 464; Nicolosi v. Clark, 147 P. 971; Afflick v. Bates, 21 R. I. 221; Perry v. Lime Co., 219 N.Y. 60; Hall v. Tel. Co., 214 N.Y. 49; Peetz v. City of Brooklyn, 10 A.D. 382.

Lindsay, C. Seddon, C., dissents.

OPINION

LINDSAY

At the close of plaintiff's evidence the court gave a peremptory instruction in the nature of a demurrer to the evidence, offered by defendant, and the plaintiff took an involuntary nonsuit. His motion to set aside the nonsuit was denied, and the appeal is from the order of denial.

The suit is one for damages for injuries sustained by the plaintiff by the explosion of a dynamite cap in the hands of one Kauffman, while the plaintiff, Kauffman, and an associate of theirs named Schneider, were standing upon a terrace or vacant lot near a drug store at about seven o'clock in the evening, of Sunday, May 22, 1921. At the time, the plaintiff was between twenty and twenty-one years of age, and Kauffman was of about the same age. Schneider was a few months more than eighteen years of age.

The circumstances leading up to the plaintiff's injuries are as follows: The defendant owned and operated a quarry situated north of Ashland Avenue and east of Euclid Avenue, in the city of St. Louis. East of defendant's quarry was another large, abandoned quarry. There was a wire fence on the south and west sides of defendant's quarry, and on the north side were buildings used by defendant in its operation of the quarry. Among these was a concrete building wherein the defendant kept the explosives used in the blasting operations. Defendant's quarry was about 100 feet deep. Its extent east-by-west was about 250 feet. There was a pool of water of no great size at the bottom, to which young men and boys sometimes went for swimming. There was a large pool in the abandoned quarry to the east.

On the morning of the Sunday in question, the plaintiff, Kauffman Schneider and a number of others were near the quarry at a place where it appears a craps game was going on. The plaintiff, Kauffman, Schneider and some others, left the craps game and went down into the defendant's quarry. To reach the bottom of the quarry they went down a series of four ladders, upon the east side of the wall of the quarry. The first ladder reached from the surface down to a ledge; thence, another ladder to a second ledge, and so on until the bottom was reached. The ladders stood nearly upright. Not far from the pool...