Sidwell v. McVay
| Decision Date | 19 April 1955 |
| Docket Number | No. 36339,36339 |
| Citation | 282 P.2d 756 |
| Parties | Tony Wayne SIDWELL, a minor, who sues by and through Ava Jane Sidwell, his mother, as next friend, Plaintiff in Error, v. Ralph H. McVAY, Myra E. McVay, Mickey McVay and W. F. Peterson, III, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In an action for damages founded on the attractive nuisance doctrine, a minor over the age of sixteen is prima facie presumed to be capable of the exercise of sufficient judgment and discretion to know and appreciate the danger that attends his ordinary acts and to have legal capacity to assume the risk of such acts.
2. The elements of actionable negligence are that defendant had duty to protect injured person from injury, that defendant failed to perform that duty, and that such failure was prokimate cause of injury.
3. The law imposes no duty generally on one person to actively assist in the preservation of the person or property of another from injury.
4. It is a settled rule that where there is no evidence reasonably tending to show that the defendant was guilty of negligence in an action for personal injury it is not error for the trial court to sustain a demurrer to the evidence.
Appeal from the District Court of Oklahoma County; Albert C. Hunt, Judge.
Action by Tony Wayne Sidwell, a minor, by and through Ava Jane Sidwell, his mother and next friend, as plaintiff, against the defendants, Ralph H. McVay, Myra E. McVay, Mickey McVay and W. F. Peterson III, for damages resulting from loss of hand in an explosion of gunpowder. From order sustaining demurrers to evidence, plaintiff appeals. Affirmed.
Howard K. Berry, Oklahoma City, for plaintiff in error.
Savage, Gibson, Benefield & Shelton, by Nelle Rhodes Fisher, Oklahoma City, for defendants in error.
Clayton B. Pierce, Pierce, Mock & Duncan, Oklahoma City, for defendant in error, W. F. Peterson, III.
Tony Wayne Sidwell, a sixteen year old boy, as plaintiff brought this action by and through his mother and next friend, Ava Jane Sidwell, against W. F. Peterson III and Mickey McVay, two other boys about the same age, and against Ralph H. McVay and Myra E. McVay, the parents of the latter, all as defendants to recover damages for personal injuries resulting from a fireworks explosion. The parties will be referred to as they appeared in the trial court.
The question here presented is whether or not the trial court was correct in sustaining demurrers to plaintiff's evidence and dismissing the action. On the morning of July 4, 1952 at about 9:00 o'clock, the defendant Mickey McVay drove by the home of plaintiff in the McVay family automobile. The two boys then drove to the McVay home where they got with the Peterson boy. For several years the three had been close school chums. They then drove to a fireworks retail sales stand where they pooled their money and bought a gross of firecrackers known as 'cherry bombs.' They returned to the McVay home where, in the breakfast room thereof and with kitchen knives, they opened about sixty or seventy of the firecrackers and removed the gunpowder totaling about one half teacupful. From the garage or shed, they got a short piece of metal pipe with a cap screwed on one end. They used a hammer and punch to make a small hole in the middle of the pipe, in which to insert the fuse. They poured the powder into the pipe and stuffed pieces of paper in the open end. Unable to locate another cap for the pipe, the plaintiff laid the pipe on the concrete floor or driveway of the garage and began trying to beat the open end of the pipe together with a hammer. The other two boys were frightened and moved back to a safe distance. After plaintiff had hammered on the pipe for several minutes, the contraption exploded blowing off his left hand.
During the time the boys were removing the powder from the 'cherry bombs,' both Mr. and Mrs. McVay came through the kitchen several times, the latter admonishing them about making a mess in the breakfast room. While the plaintiff was hammering on the pipe, Mr. McVay came out of the house and got into his car. He noticed what the boys were doing and told them to get back away from the shed or they would burn it up. About a year previously the boys had made two similar bombs from aluminum pipe and Mr. McVay had driven them to a lake near the city limits to shoot them. At about that same previous time, the plaintiff and his younger brother and possibly the McVay boy had constructed a similar bomb and had exploded it outside the city limits.
This substantially outlines the evidence as disclosed by the record, as to which the trial...
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