136 Minn. 177 | Minn. | 1917
No one saw the accident. It is clear that the child’s clothing must have caught fire somehow from the lantern, but how, no one knows. Plaintiff claimed the city was negligent in leaving a red lantern where young children could reach it and overturn it, and claims further that the lantern had only a rag for a stopper and that this was negligence.
Defendant denied negligence and alleged contributory negligence on the part of the mother of the child. The jury found for defendant.
Plaintiff appeals and assigns as error certain instructions of the court on the -subject of negligence, contributory negligence and damages.
We think this principle is applicable and that the application of it renders unnecessary the consideration of the alleged errors in the charge.
A lantern is some attraction to a child and involves some danger, but we cannot regard a common lantern as being of such attraction or such an inherent danger as to bring the case within the rule of the class of cases known as “turntable cases.”
We think there was no negligence on the part of defendant in placing this lantern upon the pile of sand at the end of the trench.
Of course the theory of this witness was that the kerosene poured out of this unstopped opening and ignited. At the same time he testified that the alleged rag at the opening was still wet with kerosene after the fire. It is matter of common knowledge that if kerosene once ignites none is left after the fire is over.
While it cannot be said that the testimony of this witness is not some evidence that there was none but a rag stopper in this lantern, still it is so shattered by evidence of plaintiff’s own witnesses and by physical facts that if a verdict had been predicated on it, the verdict could not have been allowed to stand. The order is affirmed.