United States v. Stoppelmann

• Decision Date: 17 April 1959
• Docket Number: No. 16144.,16144.
• Citation: 266 F.2d 13
• Parties: UNITED STATES of America, Appellant, v. Robert STOPPELMANN, a minor, by Mary Stoppelmann, his mother and next friend, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

266 F.2d 13 (1959)

UNITED STATES of America, Appellant, v. Robert STOPPELMANN, a minor, by Mary Stoppelmann, his mother and next friend, Appellee.

No. 16144.

United States Court of Appeals Eighth Circuit.

April 17, 1959.

Robert E. Brauer, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., was with him on the brief), for appellant.

Alfred L. Boisaubin, St. Louis, Mo., for appellee.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment in favor of appellee who by his next friend brought action against the United States under the Federal Tort Claims Act to recover damages for personal injuries. We shall refer to the parties as they were designated in the trial court. It was charged in the complaint that on the 16th day of June, 1956, certain units of the United States Navy and the United States Marine Corps Reserve Training Center conducted a mock battle, bivouac, and/or maneuver in an area near Jefferson Barracks, Missouri; that the grounds on which this maneuver was conducted comprised some 150 acres and is described as being a primitive area, thickly wooded, with dense undergrowth traversed by paths; that the property was not enclosed by fence although it had a fence along one side; that following this maneuver plaintiff, at that time approximately 12 years old, together with several playmates, entered upon the grounds where the maneuver had been carried out and picked up a large number of .30 caliber live blank cartridges which, it was alleged, were negligently left on the ground and not removed following the maneuver. Negligence was alleged in various particulars in that the children, including plaintiff, were given no warning as to the dangerous instrumentalities so left on the ground, that they had not been forbidden to play on the grounds, that defendant had negligently failed to adopt any measures to prevent children from obtaining the cartridges, and that defendant knew, or in the exercise of ordinary care ought to have known, that some injury would result to children permitted access to said locality. Other acts of negligence were alleged. It was then alleged that plaintiff and his playmates after having picked up the live blank cartridges attempted to explode the live blank cartridges by discharging or shooting the pellet from a BB air rifle at the center point or primer of a live blank cartridge, and that in doing so the cartridge exploded with such force that it rebounded the pellet or BB which struck the plaintiff in the eye, inflicting such injuries that he lost the sight of the eye. Other allegations go to the extent of the injury. The answer of defendant put in issue all allegations of negligence and affirmatively charged that plaintiff's injuries were caused by plaintiff's own negligence or that his negligence contributed thereto.

The case was tried to the court without a jury as provided by the Federal Tort Claims Act of August 1, 1947, Ch. 446, 61 Stat. 722, 28 U.S C.A. § 2402. The court made detailed findings, finding among other things, that plaintiff was a minor, born July 10, 1944, that he had just finished the sixth grade in school with average grades; that,

"On June 16, 1956, a batallion of the United States Marine Corps commenced a maneuver encampment in Jefferson Barracks, Missouri, an area of some 160 acres, owned and operated by the United States. Some 70 Marines comprised this batallion, and they were issued cartridge belts, .30 caliber rifles, machine guns, machine gun belts and clips and .30 caliber blank cartridges. Approximately 7,000 rounds of these blank cartridges were issued during the encampment which was concluded the following day, June 17, 1956, when the entire batallion vacated the premises.

"Said blank cartridges contained an explosive powder and primer caps, designed to ignite the powder, and these cartridges constituted explosive materials.

"Defendant was negligent in failing properly to police the Jefferson Barracks maneuver area from the time the maneuvers were terminated, June 17, until June 19.

"Defendant was negligent in failing adequately to exclude this plaintiff and his friends from the maneuver area from the time the maneuvers were commenced, June 16, until June 19.

"Upon the termination of these maneuvers, plaintiff and his friends visited the area and on June 17 and June 18, found and accumulated between 63 and 75 unused and live blank .30 caliber cartridges, left in the maneuver area by said marine battalion.

"On June 19, 1956, plaintiff and his friends were shooting at the primer cap of one of these live blank cartridges, which had been placed sideways on top of a 2" x 4" piece of wood driven into the ground. The shooting instrument was a B. B. air rifle. Plaintiff shot a B.B. pellet from said air rifle and exploded said live cartridge so positioned. The cartridge that was thus exploded was one found by one of plaintiff\'s neighborhood companions, Robert Piva, of comparable age to plaintiff. The explosion of the cartridge caused the B.B. pellet to lodge itself into plaintiff\'s left eye.

"Said eye of plaintiff was subsequently enucleated as the direct and proximate result of said explosion, and said explosion was the direct and proximate result of defendant\'s aforesaid negligence in failing properly to police and adequately to exclude plaintiff and his friends from the maneuver area.

"Plaintiff did not have sufficient prior experience with or knowledge of the dangerous properties of .30 caliber cartridges or other explosive materials to warrant charging him with contributory negligence.

"None of the actions of plaintiff\'s other companions on June 19, 1956, was sufficient to be constituted as intervening or efficient causes of plaintiff\'s injury.

* * * * * *

"The personnel of said Marine Corps Battalion were members of the Military forces of defendant and were acting in line of duty during the entire period of their encampment in the Jefferson Barracks maneuver area on June 16 and June 17.

"The maintenance and control of the Jefferson Barracks maneuver area were under the sole and exclusive jurisdiction of defendant.

"The said area is immediately bordered by heavily populated housing units on the south and east sides. There was a fence on the western edge of the area only.

"Defendant knew or by the exercise of due care, could have known that young children habitually frequented said maneuver area before, during and after said maneuvers.

"Defendant knew or by the exercise of due care, could have known that it permitted a large quantity of unused cartridges to be and remain exposed and unguarded in said area upon vacation thereof, and that said unused cartridges would be readily accessible to young children, and would then and thereby constitute dangerous instrumentalities in their hands, and likely to cause them to be injured thereby."

The court concluded as a matter of law that plaintiff's injuries were proximately caused by the negligence of the defendant and accordingly entered judgment for $30,000.00.

Defendant seeks reversal on substantially the following grounds: (1) that the court's finding that the .30 caliber live blank cartridge exploded and caused the BB to lodge itself in plaintiff's eye was not supported by substantial evidence, (2) that the court's findings that the United States was negligent in failing to properly police the maneuver area after the maneuvers terminated on June 17 and was negligent in failing adequately to exclude plaintiff from the maneuver area are not supported by substantial evidence, (3) that the court's finding that the explosion of the .30 caliber live blank cartridge was the direct and proximate result of the negligence of the United States is not supported by substantial evidence, (4) that the court's finding that plaintiff was not contributorily negligent is not supported by substantial evidence, and (5) that the court erred in sustaining plaintiff's objection to the following question propounded to the plaintiff on cross-examination:

"Q. Did your father tell you anything about these live blanks other than to get rid of them? A. Yes, sir.

"Q. What did he tell you?

"Mr. Chopin: Object, being in the nature of hearsay.

"The Court: Sustained."

There is little or no dispute as to the basic facts in this case, but the conclusions and inferences drawn from these facts are challenged by defendant as being unwarranted by the undisputed evidence. The findings of the court are presumptively correct and should not be set aside on appeal unless clearly erroneous or based upon an erroneous view of the applicable law. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In considering the question of the sufficiency of the evidence to sustain the findings, the evidence must be viewed in a light most favorable to the prevailing party, and the prevailing party is entitled to the benefit of all such favorable inferences as may reasonably be drawn from the facts proven. The trier of facts, whether court or jury, is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and on appeal all conflicts in the evidence will be presumed to have been resolved in favor of the prevailing party.

It is argued by defendant that there was in fact no substantial evidence that the blank cartridge exploded, but that the injury to plaintiff's eye resulted from the ricochetting or rebounding of the BB pellet from the gun which he shot at the cartridge. There was testimony of doctors to the effect that it required a great deal of force to lodge a blunt object like a BB into the tough fibers of an eyeball to a depth of 15 mm. There was testimony by the plaintiff that the cartridge exploded and there was testimony by at least two other boys that they heard the cartridge explode. Following the explosion the primer cap was gone from the cartridge and the red cardboard wad had been singed and...