Vallency v. Rigillo

• Decision Date: 19 November 1917
• Citation: 91 N.J.Law 307,102 A. 348
• Parties: VALLENCY et al. v. RIGILLO.
• Court: New Jersey Supreme Court

102 A. 348

91 N.J.Law 307

VALLENCY et al. v. RIGILLO.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1917.

(Syllabus by the Court.)

Appeal from Circuit Court, Essex County.

Action by John Vallency, by Nicholas Vallency, next friend, and by Nicholas Vallency, against Rocco Rigillo. Judgment of nonsuit, and plaintiffs appeal. Reversed, and venire de novo awarded.

William Hauser, of Bloomfleld, for appellants. Michael A. Castellano and Thomas S. Henry, both of Newark, for appellee.

WHITE, J. This case was tried in the circuit court of Essex county before the decision of this court in Davenport v. McClellan, 88 N. J. Law, 653, 96 Atl. 921, wherein a nonsuit similar to the one here entered was reversed. We think that case is decisive of this one. There a child of tender (years (five years old) playing in the street threw some dry leaves upon a smouldering fire, which defendant had there kindled and left unguarded, and the resulting blaze ignited its clothing, and it was injured.

Here the child of tender years playing in its home came across some dangerous dynamite cartridges, which defendant, its father, had negligently left where (as a jury might have found) it was to be reasonably expected the child would get them, and took them outside the house, and in play with other children pounded one of the cartridges with a stone, so that it exploded and put out the eye of one of the other children, who, with its father, brings this suit, the one for the loss of its eye, the other for expenses and loss of services. In these cases the proximate cause of the injury, as in the Squib Case (Scott v. Sheppard, 2 Bl. R. 892; Smith's Leading Cases, 797), was not the last motion or action preceding the injury, because such motion or action (being involuntary in the Squib Case, and not willful or responsible because done by a child too young to understand the nature of what it was doing in these cases) was not an intervening cause; but the proximate cause was the original negligent act, which without any new willful independent act operated through the involuntary or irresponsible, but reasonably to be expected, act to produce the injury.

In this case therefore it was for a jury to say: (1) Was it negligent under the circumstances for the defendant to leave the cartridges where he did? (2) If so, was what the child did what a prudent man, knowing what defendant knew, would reasonably expect it might do as a result of such negligence? And (3) was the child of...