Finkbeiner v. Solomon

225 Pa. 333 | Pa. | 1909

Opinion by

Mr. Justice Potter,

This was an action of trespass brought by John Finkbeiner and his minor child, Walter Finkbeiner, against A. Solomon to recover damages for personal injuries alleged to have been sustained by Walter Finkbeiner through the negligence of the defendant.

In 1905, Finkbeiner purchased from Solomon a house and lot in Shingle House borough, Potter county, and also a frame barn located on another lot, which was moved by the purchaser to the lot previously bought by him, within a short distance of the house. At the time of the purchase of the barn, Finkbeiner did not have immediate use for it and he gave permission to Solomon to leave in the barn certain “stuff,” boxes, wood and pails and a lot of different items, which were stored there. In October, Finkbeiner moved into the house, having previously given Solomon notice that he would need the barn. About October 9 or 10, Solomon moved out the greater part of his stuff from the barn, leaving only a few small items.

On October* 15, 1905, Walter Finkbeiner, who was nine years old, was playing in the barn with some other children. One of them, a much younger child, found some dynamite caps, in a tin box, and the other children apparently appropriated them. The injured boy testified that he showed the caps to his mother, who thought they were exploded cartridges or bullets. The boy attempted with a stone to drive a nail through one of the caps, causing it to explode. Two fingers and the thumb of his left hand were so injured by the explosion, that.amputation was necessary. At the trial of the case, a judgment of compulsory nonsuit was entered, which the court refused to take off. In his opinion, the trial judge says, “The defendant was rightfully using the barn for storage purposes. It cannot be said that the barn was an improper place to store the dynamite cartridges. There was no danger to be anticipated from the caps if not interfered with. ■ It may be assumed that it was necessary to keep them in a dry place. He placed them where they were unlikely to be discovered.” And he further adds, “Can it be said that the placing of a box two inches and two and one-half square, by one inch in depth, in a dark place upon a beam in a barn can be such negligence that the jury should be permitted to say that it was natural and probable that the children playing about the barn would discover it? But assuming that the jury should find that it was negligent in the defendant .to leave them where he did, how can it be said that the injury to the plaintiff was the natural and proximate consequence of his act?” He then points out that the injury to the plaintiff, was brought about by the discovery and taking possession of the box of caps by another small boy, who turned it over to his playmates. The court says, “Had the box been left wh§re it was put by the defendant no accident would have occurred. We think this is such an intervening cause, as broke the causal connection between the alleged negligence of the defendant and the injury to the plaintiff.”

Our examination of the testimony leads us, upon the whole, to coincide with the conclusion of the trial judge. The facts of the case bring it close to the line of what might be deemed negligence, but we cannot say that the view taken by the court below was wrong. It cannot be said that placing a box of such caps upon a dark shelf in a barn, is in itself a negligent act. If defendant had thrown the caps out, loosely, where children were likely to play, and would be apt to find them, the case would have been very different. We think the facts of this case bring it within the principle of Marsh v. Giles, 211 Pa. 17, where it was held that the injury to the plaintiff was caused by the unrelated act of a third party and was not a probable consequence of the defendant’s act. The present case is even nearer in its facts, to those in Swanson v. Crandall, 2 Pa. Superior Ct. 85, where as set forth in the syllabus, “the evidence disclosed the following facts: A loaded revolver was kept in the upper drawer of a chiffonier, which was used exclusively by the head of the family, and in his absence from the room, while his wife was in bed with her face averted, a five years’ old child in quest of play, discovered and accidentally discharged the revolver to the plaintiff’s injury. Held, That placing the revolver in the drawer was not the natural and probable or proximate cause of the injury, and, the evidence being undisputed, the jury should have been instructed to find for the defendants.”

In the opinion, Orlady, J., said (p. 90): “As placed by Crandall the revolver was perfectly harmless, and, save for the intervention of baby fingers, would not have caused the injury. Its discovery by the child could not have been reasonably anticipated by him. He was not present at the time of the accident. The wife was not negligent in giving the care of Evelyn to the nurse girl, and had the right to expect that attention would be so given as to prevent injury to either child. In the moment of time following the dressing of the little girl, the plaintiff could not be charged with contributory negligence in its legal sense. The unfortunate occurrence was an event which resulted undesignedly and unexpectedly, and which could not have been reasonably anticipated as a usual and natural result.”

If the plaintiff in the case at bar had left a scythe, or an axe, in the same place at which the box of caps was left, and the children had found it, and succeeded in getting it down, and playing with it, to the injury of one of their number, the want of causal connection between the act of the defendant and the injury, would have been more apparent. There was nothing wrongful in the placing of the caps in the barn, in the first instance, at the time and place where the box was placed. After-wards, when the father of the boy who was injured took possession of the building and moved it upon his own lot, where his children were liable to enter it in play, the duty would seem to have been upon the parent to inspect what was then his own building, and look out for anything which might be dangerous, before permitting his children to use it. The defendant was not then in possession, or in charge of the building.

The assignment of error is overruled, and the judgment is affirmed.