Nelson v. McLellan

• Decision Date: 05 March 1903
• Citation: 71 P. 747,31 Wash. 208
• Parties: NELSON v. McLELLAN.
• Court: Washington Supreme Court

71 P. 747

31 Wash. 208

NELSON v. McLELLAN.

Supreme Court of Washington

March 5, 1903

Appeal from superior court, King county; W. R. Bell, Judge.

Action by Royal C. Nelson, by W. F. Nelson, his guardian ad litem against F. McLellan. Judgment for plaintiff, and defendant appeals. Reversed.

Anders J., dissenting.

Roberts & Leehey, for appellant.

Preston Carr & Gilman and J. W. Rayburn, for respondent.

DUNBAR, J.

The respondent, in company with another boy, was playing on some vacant lots in the city of Seattle, and, observing a box which was not altogether covered, investigated the same, and found in it some sticks of explosive powder known as 'Judson Dynamite No. 2.' According to the testimony of the boys, these sticks of dynamite were already prepared for explosion. They took one of them (thinking it was a large firecracker, it being about six inches long) to a stump, lit a match, and applied it to the fuse. The dynamite exploded and the respondent was injured thereby, losing one of his eyes. The dynamite was exploded by the boy who was playing with the respondent. It was on the Fourth of July and they were out on the lots aforesaid exploding firecrackers. Action was brought for damages, and a judgment of $3,000 obtained. From such judgment this appeal is taken.

The complaint alleges, among other things, that the defendant was under contract with the city of Seattle to improve Denny way and other ways, avenues, and streets of the city; that, while engaged in the prosecution of the work, he used an explosive powder known as 'Judson Dynamite No. 2' (setting forth the character of the powder, and the care and skill necessary to handle it); that, without the knowledge or consent of the plaintiff or the parents of the plaintiff, and without leave or license from the owner of the premises on which the powder was stored, he wrongfully, carelessly, negligently, and improperly did store more than 20 sticks of said powder, and did suffer it to be and remain, on said premises on the 4th day of July, 1899, badly, insufficiently, and deficiently covered, and in such position as to be readily discovered and easily tampered with by children playing upon or passing over said lot; that the plaintiff and his companion were boys of tender years, and wholly ignorant of the dangerous properties of said powder; that while playing upon said lot they found and discovered a box placed with its contents upon said lot by the defendant, containing a quantity of dynamite aforesaid, said box having been there placed by the defendant negligently, insufficiently, and deficiently covered; that the said children, having found the box as aforesaid, prompted by childish curiosity, opened the same and found therein the said sticks of powder; that thereupon the said William Kiger (the boy who was accompanying respondent), without fault or negligence on his part, and without fault or negligence of this plaintiff, took from said box, in plaintiff's immediate presence, one of the sticks of powder aforesaid, and, supposing it to be some kind of a firecracker, such as that in common use on that anniversary, ignited the fuse attached thereto, whereupon the said stick of powder exploded with great force, and by the explosion thereof the injury set forth in detail was caused. Damages were claimed in the sum of $20,000. The complaint contains the other ordinary allegations in such cases. A demurrer was interposed to this complaint on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and the overruling of the same is appellant's first assignment of error.

We think, if the powder was placed on vacant city lots, upon which children are accustomed to play, in the manner described by the complaint, that it is negligence on the part of the person so depositing it, and, in the absence of contributory negligence--which does not appear from the complaint--responsibility for damages will attach. There is a great diversity of decision upon cases of this character, the particular circumstances of each case generally controlling. But, without entering into an...