Morse v. Buffalo Tank Corp.

• Decision Date: 28 February 1939
• Citation: 19 N.E.2d 981,280 N.Y. 110
• Court: New York Court of Appeals Court of Appeals
• Parties: MORSE et al. v. BUFFALO TANK CORPORATION.

280 N.Y. 110

19 N.E.2d 981

MORSE et al.

v.BUFFALO TANK CORPORATION.

Court of Appeals of New York.

Feb. 28, 1939.

Action by James Morse, an infant under the age of fourteen years, by his guardian ad litem, Herman Morse, and the latter individually, against the Buffalo Tank Corporation, for personal injuries to infant plaintiff. From a judgment of the Appellate Division, 255 App.Div. 712, 6 N.Y.S.2d 645, affirming a judgment of the Trial Term on a jury's verdict for plaintiffs, defendant appeals by permission of the Appellate Division.

Judgments reversed and complaint dismissed.

LEHMAN and LOUGHRAN, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Second department.

Frederick Mellor, of New York City, for appellant.

Ralph Stout, of New York City, for respondents.

FINCH, Judge.

This is an action to recover for personal injuries based upon alleged negligence.

The question presented is whether want of care may be attributed to a business man in the daily conduct of his business under the following circumstances: Upon the premises of defendant a drip can is left under the faucet of a gasoline drum from which gasoline is taken daily for the refueling of gasoline engines. Two boys trespass upon these premises after the close of business and in the night time, steal the drip can half full of gasoline, take it away from the property of defendant out into the street, and there attempt to throw it upon a fire theretofore started by these boys and others, causing the ignition of the gasoline. The infant plaintiff, a boy of ten, while walking along the street, stopped to look at the fire and, in attempting to run past the fire, tripped and fell into the fire, thereby sustaining the injuries for which suit is brought.

Defendant is in the business of manufacturing metal tanks. Its premises consisted of a metal one-story shop building and a large yard outside of the shop, in which some of the work was done and in which were empty tanks of various kinds and sizes, a caterpillar tractor crane, an air-operated crane and other things. The yard was not fenced. The premises of defendant are on the southwest corner. On the southeast corner is a foundry plant of the New York Dock Company. There are private houses and a store on the northwest corner, and on the northeast corner is a public school. There is evidence which would warrant a jury in finding that the boys in the neighborhood would come upon the premises of defendant to the knowledge of the officers of defendant. The workmen of defendant would at times make fires in an empty drum to burn up the waste, dirty rags and other discarded material. The children would poke and play around these fires and at times the childen would sneak in and steal gasoline in small cans. In the course of its business employees of defendant would soften and clean their paint brushes and wash their clothes and hands in the gasoline which had accumulated in the drip can.

On the night in question, after the close of business and while only a watchman was upon the premises, some boys had started in the street outside the place of business of defendant a bonfire. The infant plaintiff, a boy of about ten, while walking along the street, stopped to watch this small fire. There were seven or eight other boys watching the fire, but they were on the side of the street opposite from plaintiff. As the fire was dying down one of the boys went into the yard of defendant and obtained some tar which was in a gallon can and put it on the fire. As the tar burned down this same boy went back into the yard of defendant and saw a drum, in which was a spigot, standing upon a rack. Underneath this drum was a five-gallon can about half full of gasoline, which was dirty as if it had been used for washing. This boy and another carried the can out to the street. They testified they could tell by the smell that it was gasoline. When they were about six feet from the fire the can with its contents was thrown toward the fire. The can did not reach the fire, but landed about two or three feet away, and the contents spread out towards the fire. Plaintiff stated that he felt some of the gasoline splash upon his legs. A puff was then heard and the fire flared up. Plaintiff started to run past the fire to join the other boys. In so doing he ran towards the fire and fell into the fire. The cause of his fall, according to plaintiff, was that he tripped on something or fell from fright. His clothes caught fire when he fell. One of the boys pulled him out. He then ran across the street to the candy store, turned on a water spigot, ‘got under it and the boys threw water on him. He was then taken home.’ There is no evidence that the clothes of plaintiff caught fire until he fell into the fire.

The theory of the action has been twofold, first, negligence, and second, nuisance, the latter being based on a failure of defendant to have a permit for the storage of gasoline in violation of a city ordinance.

The case was submitted to the jury and a verdict found for plaintiff on both counts in the sum of $22,500 for the infant plaintiff and $6,000 for his father.

The count based upon negligence has been maintained upon the theory that defendant knew that children were accustomed to play in and about the premises, and that under these circumstances it was negligent for defendant to leave a can exposed underneath the spigot so as to confine the drippings from the faucet.

On the count based on nuisance, the court charged that the jury might take into consideration a violation of the ordinance of the City of New York which requires the defendant to have a permit for the transport, store or use of gasoline in the city. It is conceded that defendant possessed no such permit.

The general rule which has prevailed since the well-known turntable case (Walsh v. Fitchburg R. Co., 145 N.Y. 301, 39 N.E. 1068, 27 L.R.A. 724, 45 Am.St.Rep. 615) is that the so-called doctrine of attractive nuisance does not apply in New York, and that the only duty which an owner of land owes to a trespasser or bare licensee is to abstain from affirmative acts of negligence or not to injure intentionally such person. Vaughan v. Transit Dev. Co., 222 N.Y. 79, 118 N.E. 219;Hall v. International R. Co., 184 App.Div. 925,170 N.Y.S. 1084, affirmed, 227 N.Y. 619, 125 N.E. 919. In the turntable case, as in the case at bar stress was laid upon the fact that defendant was doing, upon its own land, that which was necessary to be done to carry on its business. Under such circumstances defendant is not liable for an injury to a child who came upon the land for play not connected with the business of defendant. It was testified without contradiction that gasoline would drip from the faucet or spigot, and it may be said to be almost a matter of common knowledge that this would happen at least in the act of turning off the faucet. From this it naturally follows that without a drip can under the spigot the ground would become saturated, which might render the defendant liable to its neighbors or otherwise. Gasoline was used by defendant to operate the caterpillar tractor crane, and men filled the tank of the tractor crane by taking gasoline from the drum. While highly inflammable, the use of gasoline does not place the case at bar within the exception concerning the use of inherently dangerous materials. Travell v. Bannerman, 174 N.Y. 47, 66 N.E. 583. As Justice Sears, now presiding justice, said in the concurring opinion in Flaherty v. Metro Stations, Inc., 202 App.Div. 583, 588, 196 N.Y.S. 2, 7, unanimously affirmed, 235 N.Y. 605, 139 N.E. 753: ‘Further, I would not be inclined to class gasoline at the present time as a dangerous explosive (like dynamite or powder). Though somewhat volatile and highly inflammable, it has come into such common use as to be classed rather as one of the everyday necessities of modern life, concerning the keeping of which no such high responsibility should be imposed.’ The facts in the case of Flaherty v. Metro Stations, Inc. supra, are strikingly similar to those in the case at bar, as applied to the boys who came upon the premises of defendant and stole the drip can with such gasoline as had accumulated in it. In Flaherty v. Metro Stations, Inc., supra, as in the case at bar, the boys built a bonfire and then went to the premises of defendant and stole some gasoline which had been left in a milk can on a platform. While proceeding with the gasoline from the premises of defendant back to the bonfire they threw some on the clothing of one another. When the gasoline was poured upon the fire it flashed up and burned plaintiff. There, too, the gasoline left in the milk can came from the drippings of a hose used in filling the truck tanks. There, too, the boys were accustomed to overrun the premises of defendant and play around the tanks. Hubbs, J., writing for an unanimous court, said: ‘In this case the defendant was storing gasoline in the milk can in the ordinary and regular conduct of its own business upon its own land, and the plaintiff was not there for the purpose of transacting business with the defendant but was there for the purpose of unlawfully taking the gasoline. It we apply the reasoning of the opinion in the turntable case, there can be no recovery.’ page 585, 196 N.Y.S. page 5.

Respondent urges, however, that the person here injured was not a trespasser and one guilty of stealing materials in daily necessary use from the premises of defendant, but a pedestrian who at all times was rightfully upon the public street. Such facts, however, show the injury to this plaintiff to be the result of intervening and unexpected causes which could not have reasonably been anticipated by this defendant. If defendant, in the proper conduct of its daily business, is not guilty of any negligence to a child who, as a trespasser or bare licensee, is injured in coming upon the private premises of defendant for no purpose connected...