Marino v. Valenti

• Decision Date: 01 July 1953
• Docket Number: No. 15470,15470
• Citation: 118 Cal.App.2d 830,259 P.2d 84
• Court: California Court of Appeals Court of Appeals
• Parties: MARINO et al. v. VALENTI et al.

Page 84

259 P.2d 84

118 Cal.App.2d 830

MARINO et al. v. VALENTI et al.

No. 15470.

District Court of Appeal, First District, Division 1, California.

July 1, 1953.

Hearing Denied Aug. 28, 1953.

DeMarco & DeMattei, San Jose, T. G. Fitzgerald, San Rafael, for appellants.

J. E. Longinotti, Rankin, Oneal, Luckhardt, Center & Hall, San Jose, for respondents.

FRED B. WOOD, Justice.

This is an appeal by the plaintiffs from a minute order granting a nonsuit and from a formal judgment of dismissal entered thereon, in an action by Arthur Marino, Nellie Marino and Rudolph Zuniga, minors, for personal injuries sustained by them, and by Juan Marino for the death of his minor son George Marino, caused by the explosion of dynamite caps with which the children were playing. George Marino had found the caps in a building on the premises of the defendants.

In support of their appeal the plaintiffs claim (1) that Nellie Marino and Juan Marino are prima facie entitled to recover under the attractive nuisance doctrine, (2) that the non-trespassing children, Arthur Marino and Rudolph Zuniga present prima facie cases against the defendant landowners on general principles of negligence, and (3) that the defendants were negligent per se, and hence prima facie liable to all of the plaintiffs by reason of their storage of these dynamite caps in asserted violation of certain requirements of the Health and Safety Code.

The Facts.

It happened about 4:00 o'clock in the afternoon of the 15th of November, 1946. The children were on their way home from school. They got off the school bus at the southwest corner of King and Tully Roads in Santa Clara County. King Road runs north and south; Tully, east and west. They walked across Tully and proceeded northerly along the west side of King. George and Nellie Marino left the group and entered a building which stood near the intersection in an orchard owned by the defendants. After entering the building George found two small boxes which contained the dynamite caps. He and Nellie then rejoined the group. On the way George discarded one of the boxes but kept the other and showed it to the children. While they were viewing it, the caps exploded. George was killed and the others were rendered permanently blind.

George was eleven years old and in the fourth grade in school; Nellie was twelve, in the fifth grade; Arthur was thirteen, in the sixth grade; Rudy was eleven, in the fourth grade. Each could read and write the English language.

The building was an old three-room wooden structure, twelve by thirty-eight feet in size. Its outside walls consisted of one by twelve inch boards, with battens, laid vertically. Witnesses and counsel frequently referred to it as a 'shack.' It lay parallel to King Road, about 15 feet west of the west shoulder of the pavement; set in about 60 feet from Tully Road. There was no fence or other barrier between it and either road. A tree and a telephone pole (of a line of trees and poles) stood between it and King Road. It had an outside door, which was padlocked, and a window that was boarded up, on the west or orchard side; and a window on the east side, facing King Road; on its front, facing Tully Road, there were several large posters; among them, posters advertising a circus and the County Fair.

Nellie Marino testified: 'The shack was real close of the road, pretty close; closer to King than to Tully Road. There was a house about a block and a half away from it, in one direction, and another about the same distance in another direction. I had passed by the shack before as I went to school. Before this day, I had gone on the orchard side of it just once; the other children had done so also; We had circled around it to get to the bus.

'There were posters on the side of the shack which faced Tully Road, 3 or 4 by 5 feet in size, about four of them. They were about a race track and things like the circus. There was a window on the orchard side of it, all boarded up. I don't think you could see in from that window. I don't recall seeing any other window. I don't remember any door leading to the outside; I think I just remember seeing a padlock.

'That day after getting off the bus and crossing a road [Tully Road] we walked along King Road. We walked in a group past the shack. Then George left the group and I followed him. He went in back of the shack, to the rear part of it [the north end], sort of in the middle of that end. He sort of walked fast to it. When he got there he saw this board and kind of lifted it up and told me to hold it. While I was holding it he went in. It was a long up and down board about 14 inches wide. It reached from the bottom of the shack up to the top; loose on the bottom where the nails used to be. The bottom was loose, the nails were sticking out. The board was not broken. It was sticking out a quarter of an inch at the bottom. George grabbed it from the bottom. We pulled the bottom part away from the building; did not have to pull it all of the wall to get in; the top of it was still fastened to the building. We looked in just before we went in. We pulled the bottom part out about as much as the board was wide. Neither of us kicked or broke any board. It was not necessary for George to struggle with the board. He did not use any tools in moving it. I do not think the wood was broken. It was around half a minute from the time George first touched the board until there was a hole wide enough for him to enter. While I was holding it he went in. Then I followed him. When we came out, the rear of the shack looked the same except the board was sort of to the side; I think it was pushed to the outside.

'I saw nothing on the rear of the shack, when I was with the group [walking past that day], that George might have been attracted to. This was not the first time I went by the shack. On other occasions when we have passed by the shack George had not run to it. The only reason I went over to the shack was because George went over and I followed him.

'After we went into the shack I noticed newspapers all over the floor. Not in piles, they were lying all crumpled up. There was dust all over the floor, and there were spider webs. It did not look like somebody was living there. There was no order at all about anything in there.

'There were three rooms. It was a long shack with two partitions dividing it into three rooms. There were no doors in the partitions; just door openings without doors. There was nothing at all in the first room except some crumpled newspapers. I went into the second room. I observed the same thing about the condition of that room, except there was a table against the rear partition near the right rear corner; that's all there was different from the first room. Yes, there were newspapers there, crumpled up, around ten or eleven of them. There was a sort of shelf up above the table. You could not approach the shelf without getting on the table. There were no chairs around the table and no pictures in that room. I think there was a window near the table.

'I went into the third [the front] room and George stayed in the second room. He was standing in front of the table; his hands were on the top of it; he was preparing to climb up on the table. In the third room I was looking at pictures hanging in frames on the wall, pictures of old fashioned people in old fashioned clothes. There were two old chairs; no table. I recall no other furniture in this room, nor any door leading to the outside. I stayed in the third room a minute or a minute and a half. When I came back into the second room George was getting off the table. He did not say anything to me at that time. He had in his hand two little round boxes. I thought they were just little boxes of face powder or something. They looked exactly like a woman's powder box.

'When we got outside, George showed me one of the boxes and threw it away. Then with the other box he and I ran to catch up with Arthur and Rudy to show them what George had found. Then we were all in a circle looking at it. George had the box in his hand and opened it and that is all I remembered. What I saw in the box was that I thought they were empty cartridges; they were copper color. (I know now they were dynamite caps.) There were around two or three layers of them, all piled up. I think Arthur just put his finger on them to see. That is the last thing that I noticed. I do not remember if any of the caps dropped on the pavement.

'I knew at the time it was wrong to enter someone else's property but I didn't think of it then. I know what is right and wrong. At that time I didn't realize. I knew it was wrong to take things from other people's property. When George picked those boxes up or took them off the shelf and came out with them, I never thought about it being not right to do so. I did not think of it, although I did know it was wrong to take things away from other people's property. The reason I didn't think it was wrong taking those boxes, was that everything happened so quick I never thought of it.

'I was in the fifth grade of school at the time. I had been going to his school about two weeks. Prior to that, all my schooling had been in Los Angeles. I could read and write the English language. I never had any particular trouble in passing my grades at school.'

Arthur Marino testified: 'From the outside, the shack just looked like real old--the wood you could tell it was old and worn out, and all that. This was a kind of an old worn out building. I recall a front door on the south side. It had a lock on it. I am not sure if it was a padlock, I was just passing through there was would just glance at the thing. It had one window on it, on the orchard side. I am not sure if there was a window on the King Road side. I don't remember whether the window on the orchard side was boarded or not. I never tried to look into the building through that window. There used to be posters there about...