McEldon v. Drew
| Decision Date | 07 May 1908 |
| Citation | 116 N.W. 147,138 Iowa 390 |
| Parties | GEORGE MCELDON, by his next friend, MRS. MARY MUNCH, Appellants, v. FRANK E. DREW, and ALFRED L. DREW, Appellees |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.-- HON. J. H. PRESTON, Judge.
ACTION at law, to recover damages growing out of the sale of some gunpowder to plaintiff McEldon. The trial court directed a verdict for defendants, and plaintiffs appeal.-- Reversed.
Reversed.
Lewis Heins and C. G. Watkins, for appellants.
Redmond & Stewart, for appellees.
Defendants were conducting a store in the city of Cedar Rapids, in the year 1906, whereat they sold gunpowder and other explosives. At the time in question plaintiff was five days over twelve years of age. He was small of stature and inexperienced in the use of explosives. He was still wearing short trousers, and had never seen any one use gunpowder save on the Fourth of July, 1905, and on the day of the accident in question. He had never used firearms of any sort, and a jury may have found that he did not have the ordinary experience of boys of his age. On the 27th day of June, 1906, plaintiff saw some older and larger boys exploding powder in a tin can, and after watching them for a time, inquired as to where they had obtained the powder, and was informed that they had procured it from the defendants. Thereupon plaintiff went to defendants' store, and asked for ten cents worth of gunpowder, requesting that it be put up in two packages. His order was filled, and plaintiff returned to where the other boys were and attempted to imitate their performances. While so engaged, there was a premature explosion, causing the loss of one of plaintiff's eyes and other injuries, of which he complains. The record presents but two questions, and these are: (1) Was there enough evidence to take the case to a jury upon the question of defendants' negligence? and (2) was the question of plaintiff's contributory negligence for a jury or for the court, under the testimony adduced?
I. There is no statute of this State forbidding or regulating the sale of gunpowder; and if there by any negligence upon the part of the defendants, it might be founded upon some common-law obligation not to sell to persons of immature age or development. The common law imposes upon every one the duty of so using and disposing of his property as not to injure the person or property of another, and if one sells a dangerous article to a child whom he knows to be, by reason of his youth and inexperience, unfit to be trusted with it, and who probably might innocently and ignorantly play with it to his own injury, and injury does in fact result, he is liable in damages therefor. The leading case on this subject is Dixon v. Bell, 1 Stark. 287, s. c., 5 Maule & S. 198, where defendant sent a young maid servant for a loaded gun, whom he knew to be too young and an unfit person to be intrusted with the care and custody of it, and who carelessly and improperly shot the gun at and into the face of plaintiff's minor son. It was held that the question of defendant's negligence was for a jury, and an instruction to the effect that, if the jury were of opinion that the instrument in such a state ought not to have been intrusted to such a person, plaintiff would be entitled to a verdict was approved. The same rule was adopted in Carter v. Towne, 98 Mass. 567 (96 Am. Dec. 682), and Binford v. Johnston, 82 Ind. 426 (42 Am. Rep. 508). In the Dixon case the servant was a mulatto girl, thirteen or fourteen years of age. The question of defendant's negligence was manifestly one of fact for the jury.
II. Bearing upon the issue of plaintiff's contributory negligence, is the following from the testimony of the plaintiff:
I took the powder home, and met two boys, and we went down to the brewery, and we met another boy, Fred Trego. He got me the can and nail, and we put a hole in it, and then we put a fire cracker fuse in it, then powder, and then paper, and then some sand to keep it in there. As I went to strike a match the spark flew on the fuse there, and just as I stooped over it, it flew up and hit me in the eye. Q. What did you go down there to get powder for? A. I seen some bigger boys do it, and I went and did it, too. Q. How many times did you see the bigger boys shoot it off? A. They were shooting it off the year before up near our house, and the same day before I got the powder, why there was Theodore Nesper shooting it off, on Seventh street and D avenue aside of the brewery. They were shooting it in a can. It was in the afternoon. I don't know how many times they shot it off. I just went past there, and I seen them. I asked them where they got it, and he said at Drew's and I said before that, 'They don't sell it any place else, do they?' Theodore Nesper and a little boy by the name of Winke was there shooting this can of gunpowder. I saw them shoot it twice while I was there. The year before, the shooting was up on A avenue and Eighth street near our house. Walter Barlow was shooting it. He had a can. Q. How did they shoot it? just tell the jury. A. The same way, put it. They had a hole in the top of the can, and took a fire cracker fuse, and put it in there, and then put powder in, then put paper so it wouldn't go out, and then put sand in it so as to keep it there, then put a little around the top -- a little powder around the top. And they light the fuse with a match. They used fuse out of one of these little fire crackers. Q. Did you ever see any one shoot these cans other times than that? A. No, sir. That is the only time I ever saw them shoot. The year before they shot it four or five times. When I got the powder, I went up near the slough, near the brewery. The can that they used there the year before was a regular corn can, a tomato can, a tin can. They put a hole in it with a nail, just big enough for the fuse to go in, or the fire cracker to go in, and they put in powder, and then paper to keep it in there, and then sand on top of the paper. They put powder in cans, and then put paper, and put sand, and turned it over. Then a little powder on top where the fuse is, then light the fuse. Q. When they lit the fuse, what did they do then? A. The can would go away up in the air. Q. But what did they do when they lit the fuse? A. Just stand over to the side. I saw them do that four or five times. They would go back some 10 feet. They would light the fuse, and then step back some 10 feet, and the can would go up in the air. The day before I bought the powder, Theodore Nesper and Will Winke were shooting it in the same way. When I got the powder, I didn't go home with it. I was going down Seventh street, and met the boys. I was looking for a can to put it in, and they got...
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