Hall v. New York Telephone Co.

144 N.Y.S. 322 | N.Y. App. Div. | 1913

Kruse, P. J.:

The action is for negligence. Two little boys, the plaintiff aged nine, and his brother aged seven, found a bottle of denatured alcohol lying on a culvert at the side of the road and within the bounds of the highway. The bottle had been left there by the defendant’s workmen. The boys took it home, some of the alcohol was poured on the ground, fired, and plaintiff was burned, and for the injury so sustained a verdict has been rendered against the defendant. The defendant appeals.

The bottle of denatured alcohol had been taken to the place where the men were at work for use by them in soldering. It was known by them to be inflammable, making an intense heat. When the men had finished their work they went away. After they had gone some distance they missed the alcohol, but did not go back to get it.

The. next day, as the boys were driving a cow along the road, the younger boy discovered the bottle and took it home. After putting the cow in the barn matches were obtained and some of the liquid poured upon the ground. The older boy lighted a match, but it went out. The younger boy then lighted another match and set fire to the liquid, near a swing in which the older boy was sitting. It burned or “ blazed up ” as the boys say, and the heat was so intense that the right leg and side of the older boy were burned.

The older boy, the plaintiff, testified that he did not know what was in the bottle or that it would bum. The younger boy also testified that he did not know what was in the bottle, but admitted that he knew it would bum; that he had seen the men pour the liquid out of the bottle and set it on fire. However, it is probably true, at least such is the inference, that neither boy was aware of the intensity of the heat, or realized the danger of setting it on fire.

The learned counsel for the defendant contends that the men were not negligent in leaving the alcohol as they did. I think the jury was well warranted in finding to the contrary. That this denatured alcohol was a dangerous substance is beyond dispute. It was not only highly inflammable, but a dangerous poison. Leaving such a substance in the public highway, within easy reach of children, can hardly be held as a matter of law to be a careful and prudent act.

.But it is further urged that the negligent act complained of was not a proximate cause of the plaintiff’s injury. It is, of course, true, as counsel contends, that without the lighted match the accident would not have happened. Neither would it have happened if the defendant’s workmen had not left the dangerous substance by the roadside. The rule is well settled that where several proximate causes contribute to an accident, each is an efficient cause, if without it the accident would not have happened. (Sheridan v. Brooklyn & Newtown R. R. Co., 36 N. Y. 39; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657; Sweet v. Perkins, 196 id. 482; Thompson v. Town of Bath, 142 App. Div. 331; affd., 205 N. Y. 573.) If, in the exercise of reasonable caution, it could be foreseen that the children might obtain this dangerous substance, set fire to it and burn themselves, then there was such a relation between the negligent act and the accident as to make it a proximate cause of the accident. I think the circumstances were such that the jury was warranted in finding that an accident such as this might reasonably be apprehended from the leaving of this inflammable substance in the highway, where children went and had a right to be, and would be likely to find it. It is not necessary that the particular consequences or the precise injuries should be anticipated or foreseen to make the defendant liable. (Lilly v. N. Y. C. & H. R. R. R. Co., 107 N. Y. 566; Mills v. Bunke, 59 App. Div. 39, 44; 21 Am. & Eng. Ency. of Law [2d ed.], 487.)

It is unnecessary to collate the decisions upon the question of defendant’s liability. I call attention to but one. (Travell v. Bannerman, 71 App. Div. 439; 174 N. Y. 47.) There refuse material had been dumped upon an uninclosed lot adjoining a gun and ammunition factory, where boys were in the habit of playing. The boys found a cake which looked like asphalt, but was gunpowder and old cannon primers. They carried it avray, and an explosion occurred while they were extracting pieces of brass from the cake. It was held in both courts that actionable negligence was established. While the case was reversed in the Court of Appeals, it was upon the sole ground that the evidence failed to show that the defendant or its servants placed the material in the vacant lot.

As regards the question of contributory negligence, I think it was clearly a question of fact, in view of the immature age of the plaintiff. The suggestion that his parents were guilty of contributory negligence in leaving matches within reach of the children is, I think, without merit.

There is one remaining question relating to the charge. The defendant’s counsel asked that the jury be instructed that even though the jury should determine that the defendant was negligent in leaving the bottle of alcohol in the road, it would not be liable to the plaintiff unless that act was the proximate cause of the accident and injury. That instruction was given. Thereupon the counsel asked to have explained the meaning of proximate cause. The judge did not give an abstract definition but stated: “Proximate cause means that the leaving of that bottle of alcohol there, in the way in which it was left there, knowing that it was a dangerous and inflammable substance — where children were likely to get it and play with it, and, through their curiosity to do things with it which might result in injury to them — that might be found to be the proximate cause in this case of the injury and damage.”

I think what was said was directly applicable to the case. Counsel thereupon requested that the jury be instructed that if there were other agencies and other acts which intervened between the alleged negligence of leaving the bottle there and the happening of the accident, then the leaving of the bottle there would not be the proximate cause of the accident. That statement, as related to the facts, I think was incorrect. The jury might well understand from that request that whatever occurred between the time that the bottle was left by the roadside and the happening of the accident, including the firing of the alcohol, were intervening agencies. As I have already pointed out, there may be several proximate causes which concur in producing an accident, and the person responsible for any one of them may be held liable for the consequences if without it the accident would not have happened. I think the negligent act was not so remote in a legal sense that it can be said as a matter of law that the- negligent act was not a proximate cause of the accident.

The judgment and order should, therefore, be affirmed, with costs.

All concurred, except Foote, J., who dissented.

Judgment and order affirmed, with costs.