Vills v. City of Cloquet

• Decision Date: 01 November 1912
• Citation: 138 N.W. 33,119 Minn. 277
• Parties: VILLS v. CITY OF CLOQUET.
• Court: Minnesota Supreme Court

119 Minn. 277

138 N.W. 33

VILLS

v.CITY OF CLOQUET.

Supreme Court of Minnesota.

Nov. 1, 1912.

Appeal from District Court, Carlton County; H. A. Dancer, Judge.

Action by John Vills, as father and natural guardian, against the City of Cloquet. From an order overruling defendant's motion for judgment notwithstanding the verdict and granting a new trial solely upon the issue as to whether due notice of the time, place, and circumstances of the plaintiff's injury was served upon the defendant city, defendant appeals. Affirmed. From that part of the order granting a new trial on the issue named, plaintiff appeals. Reversed, with directions.

Syllabus by the Court

Defendant kept a quantity of explosive fuse caps in a toolhouse on a lot in the city. Boys went into the toolhouse through an opening in the loose stones used as a foundation, took the caps, and threw them on the ground outside of the house. Plaintiff's six year old son, in playing about the premises, found one of the caps, and was injured by its explosion while he was playing with it. It is held the evidence sustains a finding that the defendant was negligent in storing the fuse caps in the toolhouse without sufficient precautions to prevent children from entering and taking them.

It was a question for the jury whether such negligence was the proximate cause of the injury, and the evidence sustains the verdict on this point.

Allegations of the pleadings construed, and held, that the answer admitted that plaintiff had caused due service of a notice of the time, place, and circumstances of the accident to be served upon the proper city officers. John A. Keyes and Bert W. Forbes, both of Duluth, for plaintiff.

J. A. Fesenbeck, of Cloquet, and Baldwin & Baldwin, of Duluth, for defendant.

BUNN, J.

This action was brought by plaintiff, as the father and natural guardian of his six year old son, to recover for personal injuries received by the latter through the explosion of a fuse cap with which he was playing. The trial resulted in a verdict of $2,250 in favor of plaintiff. Defendant moved for judgment notwithstanding the verdict or for a new trial. The motion for judgment was denied, and the motion for a new trial granted solely upon the issue as to whether due notice of the time, place, and circumstances of the injury was served upon the defendant city, as required by statute. Defendant appealed from the whole of this order, and plaintiff appealed from that part of the order which granted a new trial on the issue named.

[1] The chief question, on defendant's appeal, is whether a case was made for the jury, and, if so, whether the evidence sustains the verdict. The evidence justified a finding that the following facts were true: In April, 1910, defendant, the city of Cloquet, set up a stone crusher and toolhouse near a stone quarry on a vacant lot near the city for the purpose of quarrying and crushing stone for street improvements. The crusher stood near the road, and was supplied with stone from the quarry by means of a miniature railway track and cars. The toolhouse stood about 40 feet back from the road. A wire fence surrounded the lot, but part of the wires were down at a point near where the crusher was, and access to the lot and toolhouse through this opening was easy. The toolhouse was about 14 feet square and 9 feet high, and had a door and two windows. It rested on stones placed under the corners. Loose stones were also placed under the sides and ends of the shed. There was no floor to the toolhouse, and the stones were for the purpose of guarding against theft of the tools. The city of Cloquet completed its work about July 1, 1910, and abandoned the premises, leaving the toolhouse locked and the windows fastened. In September, 1910, the Cloquet Lumber Company, by permission of the city and under its supervision, used the crusher and toolhouse. This work was completed in October. After this no use was made of the crusher or toolhouse; but they remained on the premises, with no supervision save one or two visits by employés of the city. In the spring of 1911 boys occasionally visited the premises, and played with whatever pleased their fancy. About a month prior to the accident some boys entered the toolhouse by going through a hole between the stones under it, and carried away lubricating oil found in a barrel. Two or three days before the accident two boys entered through the hole and took some fuse caps from a box that stood on a shelf under one of the windows. This box of caps, with wires protruding from them, had been left in this position in the toolhouse by defendant. The boys brought out the caps they had taken, and threw them at a companion, who had climbed a tree near the house. Two days after this John Vills, son of plaintiff, with other boys, was playing around the house. He found one of the caps on the ground. It was bright and attractive, and he proceeded to hammer it with a stone, to ‘flatten it out,’ as he testified. The result was that the cap exploded and a piece struck him in the eye, causing the injuries for which damages were claimed in this action.

The evidence showed that it was customary for small boys to play about the crusher, tracks, and shed. The Vills boy had been a visitor to the premises on one or two prior occasions. It did not appear that defendant took any steps, other than as stated, to keep boys...