Miller v. Gooding Highway District

Decision Date16 February 1935
Docket Number5837
Citation41 P.2d 625,55 Idaho 258
PartiesWILLIAM H. MILLER and CECILE HELEN MILLER, in Their Own Behalf, and WILLIAM GEORGE MILLER, a Minor, Appearing Herein by His Guardian ad Litem, WILLIAM H. MILLER, Appellants, v. GOODING HIGHWAY DISTRICT, a Municipal Corporation, Respondent
CourtIdaho Supreme Court


1. Motion for nonsuit being equivalent to a demurrer to the evidence must be tested by that version of the evidence most favorable to plaintiff.

2. Trial court must act cautiously and carefully scrutinize all the evidence before granting motion for nonsuit.

3. On defendant's motion for nonsuit after plaintiff had introduced his evidence and rested his case, defendant is deemed to have admitted all facts of which there is any evidence, and all facts which evidence tends to prove.

4. Negligence and proximate cause of injury are questions for jury, where facts or inference to be drawn therefrom are doubtful or such that fair-minded men might reach different conclusions from the facts.

5. Where defendant is guilty of original negligence, and from the evidence inference may be reasonably drawn that original negligence placed in motion intervening cause of injury, but that such injury would not have happened had it not been for the original negligence, defendant is liable.

6. Where several causes combine to produce injury, last intervening cause is the immediate cause, although some other agency, more remote in time or space, may, in causal relation, be nearer to result, and thus be proximate cause.

7. Liability may be incurred for injuries to child of tender years by leaving dangerous instrumentalities, such as high explosives, on premises or elsewhere where such instrumentalities are accessible to children, although there might be no liability with reference to adult or child of years of discretion under like circumstances.

8. Child without discretion, although trespasser, occupies legal attitude similar to that of adult who is not trespasser.

9. Property owner is not insurer of safety of children who come on his premises.

10. Owner or person in charge of high explosives must exercise care to prevent children of tender years obtaining possession of such high explosives.

11. Degree of care required of persons having possession and control of dangerous explosives such as dynamite caps is commensurate with dangerous character of article, and, as regards children, is measured by maturity and capacity of child, being greater and more exacting as respects young children.

12. Whether highway district exercised required degree of care to prevent injury to child of tender years by explosives kept on its property and whether district's failure to exercise required degree of care was proximate cause of injury, or whether boy's manner of obtaining cap, way in which cap was handled, and ultimate picking of cap with wire were such intervening causes as would relieve district of liability held for jury.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. Adam B. Barclay, District Judge.

Action for damages for injuries to minor child. Judgment for defendant. Reversed and remanded for new trial.

Judgment reversed and new trial granted. Costs awarded to appellant. Petition for rehearing denied.

A. H Wilkie and B. H. Miller, for Appellants.

We submit that the rule set forth in Mattson v. Minnesota & N.W R. Co. states the law applicable to the case at bar:

"One who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous condition 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, 104 N.W. 443, 111 Am. St. 483, 5 Ann. Cas. 498, 70 L. R. A. 503; Edgington v. Burlington, C. R. & N. Co., 116 Iowa 410, 90 N.W. 95, 57 L. R. A. 561; York v. Pacific & N. Ry. Co., 8 Idaho 574, 69 P. 1042; Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am. Rep. 154; Vills v. City of Cloquet, 119 Minn. 277, 138 N.W. 33.)

Negligence is a question of fact for the jury where the facts or the inferences to be drawn therefrom are in any degree doubtful, or such that fair-minded men might reach different conclusions from the facts. (Denver City Tramway Co. v. Wright, 47 Colo. 366, 107 P. 1074; Richardson v. El Paso C. G. M. Co., 51 Colo. 440, 118 P. 982.)

A. F. James, for Respondent.

Leaving the caps in the building was not the proximate cause of the injury. The trespassing, the taking of the caps from the building, carrying them away and thereafter picking one of the caps with a wire was the proximate cause. (Holmes v. Delaware etc. Co., 28 A.D. 24, 112 N.Y.S. 421; Bennett v. Odell Mfg. Co., 76 N.H. 180, 80 A. 642; Perry v. Rochester Lime Co., 219 N.Y. 60, 113 N.E. 529, L. R. A. 1917B, 1058.)

BUDGE, J. Givens, C. J., Morgan and Holden, JJ., and Koelsch, D. J., concur.



Appellants brought this action against the Gooding Highway District to recover damages on account of injuries received and suffered by William George Miller, a minor, caused by the explosion of a dynamite cap taken by young Miller from a building owned by respondent. In this connection the facts are substantially as follows: Respondent owns and maintains a yard enclosed by a high board fence with a gate, within the corporate limits of the city of Gooding. The building entered is located in the northeast corner of the enclosure. It had two windows, both of which were some distance above the ground, and two doors, one of which locked on the inside. On September 23, 1929, William George Miller, then nine years old, past, and one Adrian Thomas, a boy about ten years old, were playing in the vicinity of respondent's enclosure. The gate was closed but the boys found an opening adjoining the building in the northeast corner, through which they entered. After playing around a short time, there is evidence in the record, they climbed upon a piece of machinery, then on a gravel screen and finally through the window into the building. The evidence is in conflict as to whether one of the boys threw a rock through the window, breaking the glass, before they entered. It further appears that young Miller got upon a shelf in the building, which shelf was five and one-half to seven feet above the floor, and proceeded to remove various and sundry articles from the shelf by handing them to young Thomas. Among the articles removed were dynamite caps. There is dispute in the evidence as to whether or not these dynamite caps were in a wooden box filled with sawdust or were in a tin can. After possessing themselves of the dynamite caps and a box of fuse the boys left the building, leaving the fuse near the building and within the enclosure, but carrying the caps some little distance away where they left them until the following evening. There is some evidence that an effort was made by young Miller to explode one of the caps by placing grass upon it and touching a match to the grass, and that while so engaged he was approached by a larger boy who warned him that the cap might blow up and kill him. There is also some evidence that young Miller attempted to explode one of the caps to blow up a stump. However, the possession of the caps by young Miller subsequently resulted in his picking at one of them with a wire, exploding it and seriously injuring him in and about the body and further resulting in the loss of one of his hands. There is evidence that children of the neighborhood frequently played on a pile of sand a short distance outside of respondent's enclosure and that some children of the neighborhood had played upon machinery within the enclosure, the enclosure being used, in part, for the purpose of storing trucks, graders and other highway machinery. There is also evidence to the effect that the gate to the enclosure was frequently left open. We have not recited all the facts and circumstances, but, we think, enough of the pertinent facts for the determination of the questions before us.

The case was tried before the court and a jury. After appellants submitted their evidence and rested, respondent moved for a nonsuit, which was granted. This appeal is from the judgment on the motion, and the court's action in this respect is the only error assigned.

The principal question presented is whether or not there was sufficient competent evidence submitted to the court and jury upon which liability could be established against respondent and in favor of appellants. In granting the motion for nonsuit the trial court's theory no doubt was that appellants had failed to make out a prima facie case and that no recovery could be had under the facts submitted whereupon the jury was discharged from further consideration of the cause. A motion for nonsuit, being equivalent to a demurrer to the evidence, must be tested by that version of the evidence most favorable to plaintiff. The general rule would seem to be that trial courts should act cautiously and should carefully scrutinize all of the evidence before granting a motion for nonsuit. The rule announced in this jurisdiction is that: On a motion by defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. (Later v. Haywood, 12 Idaho 78, 85 P. 494.) This rule has been somewhat amplified in later decisions of this court as will be...

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