Parnell v. Holland Furnace Co.

• Decision Date: 22 November 1932
• Citation: 184 N.E. 112,260 N.Y. 604
• Parties: Theodore PARNELL, an Infant, by Matthew Parnell, His Guardian ad Litem, Respondent, v. HOLLAND FURNACE COMPANY et al., Appellants. Matthew PARNELL, Respondent, v. HOLLAND FURNACE COMPANY et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

260 N.Y. 604

184 N.E. 112

Theodore PARNELL, an Infant, by Matthew Parnell, His Guardian ad Litem, Respondent,

v.HOLLAND FURNACE COMPANY et al., Appellants.

Matthew PARNELL, Respondent,

v.HOLLAND FURNACE COMPANY et al., Appellants.

Court of Appeals of New York.

Nov. 22, 1932.

Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (234 App. Div. 567, 256 N. Y. S. 323; 235 App. Div. 756, 256 N. Y. S. 939), entered March 17, 1932, affirming, in the first action, and modifying and affirming as modified, in the second action, a judgment in favor of plaintiff entered upon a verdict. The first action was brought to recover for personal injuries alleged to have been sustained by plaintiff, an infant, through the negligence of the defendants, and the second action was brought by the infant plaintiff's father to recover for medical expenses incurred and to be incurred by him on behalf of his son. The modification by the Appellate Division in the second action consisted in reducing the amount of the verdict. A dismantled automobile, owned by the defendant Herman Brandt, an employee of the defendant furnace company, which at times had been used in the company's business, had been permitted to remain on property used jointly by it and others adjoining its land in the city of Niagara Falls. The tank of the car contained some gasoline. The cap of the tank had been removed by children playing about the car. On the following day the infant plaintiff, while standing on the running board of the car, picked up two stones which were lying in the bottom of the car and struck them together. An explosion occurred, and flames came out of the gasoline tank. He was thrown or fell to the ground and was burned.

Alpheus R. Phelps, of Niagara Falls, for appellant Holland Furnace co.

Glenn A. Stockwell, of Niagara Falls, for appellant Herman Brandt.

Francis T. Findlay, of Niagara Falls, and Carlos C. Alden, of Buffalo, for respondents.

PER CURIAM.

Judgment in each case affirmed, with costs.

POUND, C. J., and LEHMAN, O'BRIEN, and CROUCH, JJ., concur.

CRANE, J., dissents in opinion in which KELLOGG and HUBBS, JJ., concur.

CRANE, J. (dissenting).

In affirming this recovery we are going further than any case heretofore reported, and in my judgment placing a heavier burden upon business organizations than common foresight demands.

At Main street and Linwood avenue in the city of Niagara Falls, the Holland Furnace Company rented a shop for carrying on its business. A lot or vacant land separated its place from two other buildings owned by the same landlord. The tenants used the between land in common. An employee of the furnace company owned an old Ford automobile which he had sometimes used in the company's business, but which had been discarded, dismantled, and left unused in the yard near the shop. Children of the neighborhood played about the buildings and in and on this old car. Surely the furnace company was under no duty to keep it in repair as a plaything. In the tank of the car was some gasoline. This tank was properly and securely capped. The day before the accident this cap had been removed by mischievous boys and some water poured into the tank. The plaintiff, a young boy, while standing on the running board of the car, knocked together two stones, and an explosion occurred which seriously burned him.

The furnace company, which did not own the car, has been held liable in heavy damages for its negligence in permitting this old dismantled car to remain on its property in a condition dangerous to children; that is, for having gasoline stored in a tank properly capped, where children might get hurt if they meddled with it.

No liability followed from permitting lime to escape into the street from barrels, although a young boy, 7 years old, took some of the lime and was injured by pouring water on it. Beetz v. City of Brooklyn, 10 App. Div. 382, 385, 41 N. Y. S. 1009, 1011. The court said: ‘The lime was harmless as it lay upon the street; it was only made dangerous by the active intervention of two other agencies, the boy who carried it and its contact with water.’

In Flaherty v. Metro Stations, Inc., 202 App. Div. 583, 196 N. Y. S. 2, affir...