Mattson v. Minn. & N. W. R. Co.

• Decision Date: 21 July 1905
• Court: Minnesota Supreme Court
• Parties: MATTSON v. MINNESOTA & N. W. R. CO.

95 Minn. 477

104 N.W. 443

MATTSON

v.MINNESOTA & N. W. R. CO.

Supreme Court of Minnesota.

July 21, 1905.

Appeal from District Court, Carlton County; J. D. Ensign, Judge.

Action by Charles Mattson against the Minnesota & North Wisconsin Railroad Company. Verdict for plaintiff. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appeals. Affirmed.

Syllabus by the Court

The degree of care required of persons having the possession and control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost care must be exercised, respecting the care and custody of such instrumentalities, to guard against injury to others.

The degree of care must be commensurate with the dangerous nature of the article, and is greater and more exacting as respects young children.

Defendant left exposed and unguarded on its premises a large quantity of dynamite, which was found by plaintiff's children, an explosion of which by them resulted in the death of one and the permanent injury of the other. It is held that the evidence is sufficient to justify the jury in finding (1) that the dynamite was obtained from the premises of defendant, (2) that defendant negligently permitted it to remain thereon exposed and unguarded, and (3) that the children were not guilty of contributory negligence.

In an action brought by a child non sui juris for injuries to his person caused by the negligence of defendant, the contributory negligence of his parent or guardian will not be imputed to him. Fitzgerald v. Ry. Co., 13 N. W. 168, 29 Minn. 336,43 Am. Rep. 212, overruled.

The negligence of the parent will bar an action by him for loss of services, but not an action by the infant. Davis & Hollister, for appellant.

John Jenswold, Jr., for respondent.

BROWN, J.

This action was brought under the provisions of Gen. St. 1894, § 5164, to recover for injuries to plaintiff's minor son, caused, as alleged in the complaint, by the negligence of defendant. Plaintiff had a verdict in the court below, and defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.

It appears without dispute that plaintiff's two sons-Hjalmar, for whose benefit this action is prosecuted, and a younger brother-both under the age of nine years, obtained from some source a stick of dynamite, which they exploded, instantly killing the younger of the two, and permanently maiming and injuring Hjalmar. Two principal questions of fact were presented for the consideration of the jury, viz.: (1) Whether the dynamite rusulting in the injury complained of was obtained from the premises of defendant; and (2) if so, whether defendant was guilty of negligence in permitting it to remain on or about its premises unguarded and unprotected. It was claimed by plaintiff that the dynamite was obtained from defendant's premises, and that defendant was guilty of actionable negligence in permitting it to remain in an exposed place thereon. This was controverted by defendant, and it is urged in this court that the evidence is wholly insufficient to justify the verdict of the jury upon either question. The evidence tends to show that, some time prior to the date of the occurrence complained of, defendant was engaged in constructing a roadbed in the vicinity of the farm owned and occupied by plaintiff and his family, and that in and about this work it used dynamite in removing stumps of trees and blasting rock. It had finished its work in this particular, and the employés engaged therein had gone elsewhere; but all the dynamite belonging to defendant, which had been taken to this place for use, was not removed at the time the work was completed, at least the evidence is sufficient to justify the jury in so finding. The evidence shows that one box of dynamite was deposited under a pile of ties near the railroad track, and another was discovered, by plaintiff's boys and a neighbor's boy of about their age, under an old mattress, which had evidently been used by defendant's employés during the time they were engaged in the work in that locality. The explosion, which resulted in the death of one of the boys and the injury of the other, occurred not far from the railroad right of way, and near at hand was found on the day following a pile of about 16 sticks of dynamite laid up against the stump of a tree. Just how this came there the evidence does not disclose. It was not upon defendant's premises, but about 300 feet therefrom. Considerable blasting was done by defendant's employés, which was naturally attractive to the boys of the neighborhood, and they were to some extent loitering about the railroad right of way while the work was in progress. They had been warned away by the railroad employés, and plaintiff, their father, had been told to keep them away from the railroad work. On the day prior to the accident the boys discovered the box of dynamite under the mattress, and called the attention of one Nester, who was in the employ of defendant, to the fact. Nester took the box, opened it in the presence of the boys, and, upon discovering that it contained dynamite, stated that he would take it down by the railroad track, a short distance away, and remove it when he quit work at night. The boys asked him for some of the dynamite, but he refused, saying it was a dangerous article to handle and that they must let it alone. They followed him to the railroad track and saw him place it under the ties, where it is claimed the other box was stored, and he most have known of their presence and that they knew where he placed it. The ties were piled along the side and at right angles with the track, projecting over the embankment, leaving a space underneath the outer ends and the receding bank, in which the dynamite was placed. The boys lingered at the pile of ties until after Nester had returned to his work, when they went to the box, removed the cover, it not being nailed down, and took out a stick of the dynamite and carried it home with them. On their arrival home, the father discovered the dynamite, took it from them, and concealed it in his barn. The day following the boys obtained dynamite from some source, as already stated, and its explosion resulted disastrously to them.

We have considered the evidence with care, and are satisfied that the jury was fully justified in finding that the boys obtained the dynamite from the premises of the railway company; at least, the evidence is not so clearly or conclusively the other way as to justify the court in disagreeing with the jury. While there was evidence that dynamite had previously been used, not only by the railway company, but by plaintiff and other farmers in the vicinity, as an agency in removing stumps in clearing land, the fair inference from all the facts shown, which the jury had the right to draw, points to the fact that the dynamite which did the damage complained of belonged to defendant. Plaintiff testified that he had no dynamite at his home at this time. It appeared on the trial, however, that 60 or 70 sticks were found in one of his buildings under a barrel the day following the accident; but how this came there was not made clear by the evidence, and it was for the jury to say whether the boys took from that source, conceding that it was there on the day of the accident, or from defendant's supply at the pile of ties. The evidence is conclusive that they knew of the location of the company's dynamite (they were present when Nester placed the box under the tie pile), but it does not appear that they knew of that in the building owned by plaintiff. Plaintiff was not at home on the day in question, and if the boys were looking for dynamite for the purpose of pleasure and amusement, and knew that it was within their reach at home, they naturally would not have been searching defendant's premises for it. Upon the whole record, therefore, we conclude that the verdict to the effect that the dynamite was taken from the premises of defendant is sustained. It remains to consider whether the evidence makes a case of actionable negligence against defendant respecting the care and custody of its dynamite, and we pass to that question without further discussion of the evidence upon this feature of the case.

Plaintiff relies for recovery upon the doctrine of the ‘turntable cases,’ while it is strenuously contended by defendant's counsel that the facts do not bring the case within that principle of law, that it conclusively appears that defendant took reasonable care of its dynamite, and that, conceding for the purposes of argument that the dynamite resulting in the injury to the boys was taken from its premises, they were trespasers thereon, and no recovery can be had in this action. The rule governing cases of this kind, stated in substance, is that 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. The rule is intended for the protection of children of tender years, who from immaturity are incapable of exercising a proper degree of care for their own protection. It was first applied in this state in the case of Keffe v. Ry Co., 21 Minn. 207, 18 Am. Rep. 393, where it was said that the owner of dangerous machinery, who leaves it in an open place, though on his own land, where he has reason to believe that young children will be attracted to it for purposes of play, is bound to exercise reasonable care for the protection of such children. That case has been followed, and the principle therein laid down applied, in several subsequent cases in this court, and by the courts of last resort in other states; and though in ...