*1 Yol. SUPREMECourt Missouri. 316. CD —q. qualified is of its offi- court to determine who to become-one at-
cers,
ought
removed,
and for
to be
what cause he
hence
torneys
could
officefor misconduct ascertained
be removed from
by
Secombe,
Ex
judgment
parte
and declared
of the court.
How.
9; Ex parte
333.”
Garland, Wall.
v. State Board Medi-
[State
Examiners,
cal
For announcing general other cases same Mef doctrine see: Board, 710; Hasbrouck, fert v. Medical People Kan. 11 Utah, 219; supra; Virginia, Dent West v. Webster, State 150 Ind. Freeman v. Examiners, (Okla.) 56; Board of Medical 154 Pac. State McCrary, Board v. 95 Ark. ex Medical State rel. Hurwitz v. North, (L. Ed.) S.U. 496. holding Under the State Board of Medical Examiners, State supra, which inis accord with that of generally, authorities our empowering statute the State Board of Health to revoke licenses process would denying not have been void as of law due if even provisions entirely for review certiorari had been omitted. Such prevented omission would not have or applicant, licentiate, obtaining courts, relief in the where the board oppressive acted ly, arbitrarily, jurisdiction. or without v. Michigan, supra [Reetz ] For appearing judgment reasons herein of the circuit court is All concur, except affirmed. Graves, J., absent. Raymond Independent Kennedy, Appellant, v.
Leslie Quarry & . Company. 291 S 475. W. Construction One, February 16,
Division 1927. Upon DEMURRER: Inferences. a demurrer to the evidence every is entitled to may reasonably inference in his favor which be drawn from the evidence. Dynamite Caps 2. NEGLIGENCE: Quarry: and Fuse: Found in Inference may to be Drawn. finding The inference that be drawn from a quarry, and fuses in a shed at the bottom of defendant’s paps person company where there is no evidence that other had used the placed is defendant.or its servants. Explosives: Exceptional possession 3. -: He Care. has in his who exceptionally dangerous under his control instrumentalities in character precautions exceptional prevent injury being bound to take done them. liability prudent power injury, test of of a' foresee depends circumstances, including the on the nature of the instrumen- talities, time, injured; place party and the status' this persons producing are case the of and status of primary importance. ques- Chain. Broken In this case 4. -:-: tion Causal Connection: boy served break the the acts of a mature is whether decision negligent act and the chain causation between 1926] & CONSTRUCTXON KENNEDY V. QüABRY party,' a third and to relieve the defendant from the result of its negligence. Dynamite Caps: Application. Attractive 5..-: Nusiance: The doctrine *2 only years turn-table and applied young attractive-nuisance cases is to applied boy eighteen It children. discovered of purpose quarry cannot old, be to a and a half who dynamite caps and a fuse in a tin box in a shed the near bottom deep quarry- put pocket away a and them in his and carried them for the having them, some fun with and who knew that the was a blasting going time, long something had been on for a knew fuse, appropriat- the use of a and knew when he took them that he was ing something belonged right which to another and which he had no to take and business with.” “no injury 6. -: Proximate Cause: Definition. The cause of an . which, sequence, by any is that and a natural continuous unbroken new cause, occurred. injury, produces and the without which the would not have Trespasser: Dynamite Caps. -: -: 7. A who had dynamite part caps, negligently quarry the left in a and by boy eighteen years age, a and a half taken mature can no sense be yet boy regarded trespasser; trespass a if the and the as other acts of who negligent act and the took them intervened between thé of defendant injury, producing independent and efficient causes in the the to defendant injury. for the is not liable Dynamite Cap: Explosion: Injury Party: Proximate 8. —-': to Third operated Intervening and Cause: Unusual Case. Defendant owned Cause: deep. city, long and feet a in the midst of the 260 feet about boys young went pool men sometimes a water in which and In it was swimming, reaching ledge ledge to ladders which extended from shed, open pool on two sides. On a Sun- stood old bottom. Close ladders, Schneider, day re- morning went down the Kauffman and others pool. his clothes in the Schneider left and went into moved their clothes pool, and shed, dressing a tin box from the saw after his return and while closed, twenty long. lid but the was inches box it a fuse fifteen or on sign fastened, warning it. He removed or about was and no was not put caps, and two of lid, a in the box number and found dynamite, leaving he told pocket. piece his After of fuse in fuse, Kauff- and and him found and showed what he had Kauffman They with them. they fun and have some suggested hide them that man took awning, store, and went drug them in hid to a distance them some awning a vacant went to they and evening away. took them In the match, fuse, and light but by. wanted Schneider lot near had.no it, smoldered lighted and it end of and from him took it Kauffman up. not know did He came slowly. time that About burnt dynamite awhat they doing, not know and did what had or what cap put them, Kauffman feet of three . within stood he was. While purpose ex- open a end of fuse into lighted end of plaintiff re- immediately exploded, and cap firé, but tinguishing the practically blind. eyes him made which injuries to his ceived hau he until gone age. school years He had eighteen a half was clerk manifest years a had been four grade then for eighth reached for mo- blasting, seén had dynamite heard of had He railroad. a charges, dynamite bombs, and lighting set off .to men pictures fuses tion place was that knew He for. what know 'did .-not but recently not there, through had gone blasting quarry, that fuse, he was that caps and he took blasting. knew He been taking that he he knew said belong himto something not did age, twenty years had been was -Kauffman them.” with business had “no high work, went to later gone fourteen, then was school until SUPREME Court Vol. Missouri, years, school two dynamite for, knew what was knew that was blasting, used in question knew that dynamite fuse, the fuse in but said safety he did dangerous, thought not know that was awas extinguishing Held, device for lighted "first, the fire of a fuse. the doctrine of the applica- turn-table and attractive-nuisance has no cases experience; second, tion to of such holding cases that a child of dynamite caps tender' who takes under such circumstance is not trespasser, and that such act of a child of tender does not break the negligent injury, chain of causation between act and are not con- trolling; and, third, assuming leaving dynamite caps..and act, negligent fuse shed under the stated facts the .acts of intervening acts, neg- Schneider and Kauffman were between ligent injury, plaintiff’s and anticipated, which were not be to. by defendant, act negligent original which character made defendant’s remote, superseded it. The act of Schneider not that age, negligence, concurring tender one of child of mere act of a maturity, moving wrong- person nearing independently, and conscious of conjoining doing, Kauffman and his act was an efficient inter- vening plaintiff’s anticipate, defendant bound bars right recover for his Explosives, J., Juris-Cyc. 11, p. 187, Corpus Section 6? References: C. n. *3 69; New; 492, 46, 209, Negligence, Cyc,, p. p. 188, n. 7. 29 p. n. Section Cause, Cyc., p. 745, 52; 494, 58; 495, 60, n. p. p. 32 n. 66. Proximate n. n. Trial, Cyc., p. 38 n. 67. City of Louis.—Hon. Franklin Court St. Appeal from Circuit Judge. Miller,
Affirmed. appellant. & &
Hay
Flanagan
Hensley, Allen,
Fitch for
Moore
(1)
adduced
out a
The evidence
sufficed make
case
against
negligence
of actionable
the defendant. When defendant
high
brought
kept
premises
dangerous explosives,
to and
its
duty
highest degree
care,
it was its
to use the
utmost caution
^
diligence,
custody
thereof,
as to the care and
in order to re-
agency.
clearly
dangerous
strain
negligence
or confine such
It was
part
highly dangerous
explosives,
to leave such
at-
lying
youths,
exposed
dilapidated open
tractive to
shed on its
premises,
boys
coming
were in the habit of
where
with’defendant’s
knowledge
making
acquiescense;
defendant
liable for the
naturally
proximately
resulted from such neg-
ligence
question
was taken from defendant’s
premises,
coming
habit of
with defendant’s
presence.
explode
plaintiff’s
caused
Diehl
Co.,
v. Fire Brick
641;
151;
299
v. Inv.
58
Co.,
Mo.
Olsen
Wash.
Clark v.
Co.,
Powder
479;
1915E,
L. B. A.
Bagwell,
of Lubbock
206
v.
S.
371;
W.
518, 42
Co.,
Juntti v. Min.
119 Minn.
L.
(N. S.)
B. A.
840;
Akin
&
48
Eng.
Co.,
98;
v.
Machine
Wash.
v.
Gerber
City,
Kansas
304
785
KbnNedy
Construction
Quarry
v.
&
1926}
59
Wilkins,
277;
v.
Crabb
119 Minn.
Cloquet,
v.
157; Vills
Mo.
266;
App.
Co.,
& Power
Light, Heat
v.
302; Moore
Wash.
Co.,
Ry.
Minnesota
252; Mattson v.
Tschider, 205 Fed.
v.
Sandeen
Mc-
Nelson v.
515;
Mich.
Harlow, 55
v.
503; Powers
70 L.
A.R.
11;
45
St.
Ohio
Railroad,
208; Harriman v.
31 Wash.
Clellan,
y. Granger Min-
866; Mathis
Supp.
N. Y.
Bannerman, 75
Travell v.
301;
Ky.
Padgett, 158
Ry. Co. v.
634; Cincinnati
ing Co., 85 Wash.
y.
606;
Ky.
Chandler, 168
114; Miller
123 Minn.
K3iel,
Eekart v.
(2)
adduced
The evidence
Mills,
Watts
(1)
tending
any. person,
There
no evidence
to show that
act-
ing
scope
employment
defendant,
in the
of his
as a servant of the
placed
dynamite caps
and left
the box of
where Schneider found
the same. Lioni Granite
Ry.
N. B.
C. & O.
Co. v.
Rogers,
(2)
leaving
dynamite caps
316 Mo.—50. ‘term, SupReme Missouri, Yol. 316. oe Court 191,'S. y. ;- 3.038 Berry W. Hemp & App. Mo.
Ringolski,
Co., 236
v. Cons.
App. 11;
Roilo
Packing Co.,
Ind.
Roe v.
couid
Britt, 258 U.
Defendant
Zinc
S.
S.
W.
United
reasonably prob-
likely or
it would be
to foresee that
required
not be
away
play
and
carry dynamite
would
young
able that
men
Kauffman
as
did.
Schneider
manner
a reckless
not make
A
of such an occurrence would
defendant
possibility
bare
(3)
Albany Railroad,
The suit one for Kauffman, dynamite cap of a in the hands explosion tiff of theirs named plaintiff, Kauffman, and an associate while drug standing upon vacant lot near a Schneider, were a terrace or May evening, Sunday, store.at about seven o’clock twenty-one twenty years of time, At the was between age, age. was few Kauffman was of about the same eighteen years age. months more than leading up plaintiff’s injuries are circumstances operated quarry,
follows: The defendant owned and situated north Avenue, city of Ashland Avenue and of Euclid east of St- quarry Louis. East large, of defendant’s was another abandoned quarry. There wire fence on the south and west sides de- buildings fendant’s on the north side were used de- operation quarry. fendant in its Among these was a concrete building kept explosives wherein the defendant used the blast- ing operations. quarry deep. Defendant’s was about 100 feet Its ex- east-by-west tent pool about feet. There of no of water great bottom, size at the young to which men and sometimes swimming. went for large pool quarry There was in the abandoned to the east. morning
On Sunday in question, plaintiff, Kauff- man, Schneider a number of .and others were near quarry at a appears craps game where it going on. Kauffman, Schneider others, and some craps game left the and went down quarry. into the defendant’s To reach the bottom of they went down a series of ladders, upon four the east side wall quarry. The first ladder reached from the surface down to a ledge; thence, another ladder to a second ledge, and so on until ‘ bottom was reached. nearly The ladders upright. stood far Not pool mentioned, that has been stood an shed, old roof, had a sides; but was open on two Schneider and one or two others re- moved their clothes and went into the pool, did not. *6 SupREme Yol. Missouri, Court
00CO upon shed, his Schneider left his clothes in the and return from the pool lying piece timber dressing, upon and while he saw shed, lay piece box, upon in the a tin and the box of fuse long. shed, or 20 inches 4 timber un- extended across ground. roof, der the and was feet above The tin box was several length breadth, 3 or and about inches and about two inches 3^4 deep. closed, top It was or lid was not fastened. was but the There warning sign it. upon or about Schneider removed the lid of the bos, dynamite caps. He and found therein a number of took out two caps, put piece pocket. He and them and of fuse into his nothing companions time, finding caps said to that about his quarry dispersed and fuse. and the others left and their He several homes. This was at about o’clock. after However, twelve climbing quarry, out of the Schneider told Kauffman what he caps fuse, found, suggested and him and a and showed' Kauffman they them, evening. and some fun hide them that Ac- cordingly they drug caps and fuse to the took store two some awning three blocks distant from hid them in the and evening front At seven o’clock that store. about Schneider drug store, and Kauffman cáps returned to the took the and and awning, by. upon ground and fuse from the went the vacant near light himself, match, Schneider wanted to the fuse but had no and lighted it, Kauffman took from him and end of and it smoldered slowly. plaintiff scene, or burned About this time the came seeing Kauffman, curiosity aroused, his he up appears It went to them. before up he went near they Kauffman, Schneider and did not know what had or what trying he did then dynamite and he said know it was do, up, or what such a was. Soon after came and while standing within feet Kauffman Schneider, he three put lighted open Kauffman end the fuse into the end cap. aof. did extinguishing Kauffman said he this with the idea of fire. cap immediately exploded, and Kauffman lost the thumb and forefinger right hand, injuries of his received his practically eyes which made him blind. There was no direct evidence fuse, how containing to show when or the tin box caps, shed be in the shed. The was about twenty came to feet from the regularly had been pool. While the operated, there had not recently near blasting the shed. It very been was admitted that operations dynamite used its fuses the defendant in the contained box. character those school, had been to Schneider testified he until he was in the eighth quit grade, and then school and had been at work as a manifest clerk for the Terminal Railroad four before the accident. dynamite blasting, He had heard of and had seen motion pictures 1926] Kennedy Quarry & Construction he charges, but dynamite, bombs, and set off lighting fuses of men had been Kauffman for. caps were what the did not know he said St, then old, fourteen he was until Louis in school in years. high two school went to also he said work, he gone pictures motion had seen for, and also dynamite knew’what He lighting fuses, by charges with setting off bombs of men blasting used he knew said fuses. He did fuse, but said *7 a dynamite question was fuse in knew the and ‘£ safety it device thought was dangerous, and cap was know this not light by mistake—when they it would something on the fuse or and when he He said that out.” put the fuse want to they w’ould end, awning cap had on each in it put fuse Schneider cap on awning there was they out of the took it that when put on the end of took one he off That was the the fuse. lighted. he fuse wrhich great long time at no for plaintiff had lived and the others blasting operations had been knew that quarry, from distance morning to that said he had been church in it. carried on he said going craps game. On his cross-examination over to the before taking some- caps and fuse that he knew when he took paying it, belong him; was not for thing did that he which not to they with it. He Kauffman said and that he had no business do. light to what would wanted to the fuse see is the bene- Upon plaintiff to the evidence entitled to demurrer his can be every in favor which drawn fit of inference from caps box in the evidence. Since the fuse and were the shed found quarry, theretofore the bottom defendant’s defendant using regularly quarry that kind in its been fuses company person that other had used there was no evidence explosives in drawn, such the inference be reason- could ably, question place in were in the fuse where found, through were an act of defendant or its servants. [Ger- City, urged ber v. Kansas It is not here defendant 157.] contributory negligence. guilty plaintiff, they designate youths”, Counsel while “attractive to as dangerous explosives open prem- left in the shed on defendant’s boys ises, knew, yet where as defendant in coming, the habit of nuisance’, say merely predicated upon “case not the ‘attractive theory.” or ‘tum-table’ The contention is there was of' violation duty public defendant owed general, to and the in dangerous agency. confine There are in cited brief for appellant, cases, many some from this jurisdictions, other supporting the contention clearly negligence made that it was part defendant’s caps, to leave “attractive to lying youths” open its premises, shed on coming habit of Supreme Missouri, You. [Ooiober CouRt in- fox*the knowledge; and that is liable defendant
with defendant’s naturally proximately resulted from jury negligence question was taken from de- when the such boy, dangerous did know of premises by a who its fendant’s plaintiff’s presence. character, explode and it was caused under the act of Another line cases is cited the contention Schneider in from the and fuse lighting cap exploded, and the act Kauffman fuse and did not break the causal connection in the plaintiff’s injury. In between most explosive alleged person eases cited the who found finding negligently exposed, child age, who, been of tender explosive, person injured. it, some, handled and was the also question cause of was raised the act young child, being injured, where a third inquiry independent, cause, whether the child was an in- efficient tervening, producing may general
‘‘It principle be stated aas of law that one who has possession his instrumentality exceptional under his control an ly dangerous in character exceptional bound to take precautions prevent thereby.” *8 being done L. R. C. “The [20 51.] liability test of power prudent is the of a person injury, to foresee (cid:127)and question, course,-depends this of on the particular circumstances of case, including instrumentality, nature of the time, place, injured. of person status Under all almost cir cumstances, danger however, great there is duty a commensurate in respect care of such explosives,” instrumentalities as R. C. [20 “ L. years, youthful Children of tender persons 52.] generally, are degree entitled to a proportioned care ability to their to foresee perils they may avoid the encounter.” R. C. L. [20 37.] disagreement There is little general as to the principles governing question what constitutes cause, difficulty may but given case, arise in a and in one question wherein is involved the whether the act a child young person may or anbe efficient interven- ing cause, between the person and an ato person, third so as to break causation, the chain of relieve former from liability negligent his for acts, because the answer to the question must turn application general of the test to the particular facts of the case. doctrine “attractive nuisance” or “turn-table” cases hardly can be extended so as apply to the facts in this case. Schneider, who discovered box was not young child, 18y2 old. Kauffman was two older than ho. Both of them knew the was a where blasting had been going long on for a time. something Both knew fuse, use of 1926} ' Kennedy & CONSTRUCTION Quarry causing showing used fuses pictures seen the they had least opened, which Schneider box in a closed caps were explosions. something appropriating he was knew testimony he shows and his With right take. and which belonged another which at with an play child merely inclination him it was wrongful appropria rather a way, but coming in his object tractive expressed it, he “no things which, as he made of consciously tion “attractive- “turn-table” The doctrine with.” business Bak [Hight v. young children. applied cases nuisance” is not the doctrine court has This said App. 168 Mo. ery, 431.] Holding Co., Mo. Laclede Gas 395.] to be extended. [O’Hara question whether the box of do, under the evidence as we jury, defendant, for the through was one an act of was in' the shed applicable to defendant his conduct principles certain general ‘‘ creating proximate cause may To constitute theory be stated. the natural injury must have been negligence the liability for Also, Cyc. negligent act.” consequence of the 492.] probable [29 ‘‘ result should be the natural requirement that the addition to the In commonly negligence, it is stated consequence of the probable attending light consequence should be one ordinarily man would prudent reasonably circumstances negligence.” his as the result of might probably occur [29 foreseen injury could not have been Cyc. Again, 493.] —“If negligence, such act probable result anticipated as (cid:127) Cyc. injury.” And cause or no cause remote [29 495.] is either an,act necessary negligent it is not to render further —“Where committing might it could or proximate cause that in- consequence precise form of the particular have 'foreseen occurred, in which it if the ex- particular manner jury, or the might anticipated care it have been foreseen ercise of reasonable Cyc. might result.” that some 495.] [29 be noticed. cases cited counsel should The Missouri Fire Brick Diehl v. Green *9 boy age, caps and found the while he was years'of seven years age. The company1 brother, with his nine of right ground upon way, plaintiff a lying on the near of carrying pass brother were accustomed to meals to their and his father, employed the defendant. Defendant knew who was pass along way. this, and knew that others were that accustomed only plaintiff In that case the and his brother were not children give age, of tender but the circumstances were as would rise such part something to the belief on their that the which had away. leaving dangerous been abandoned or thrown explosives exposed, apparent. so and in a was In such that there was case also considered the fact the that plaintiff showed Supreme You.
792 Missouri, Court mother, at them and re caps to his who looked more of the one or knew plaintiff. Her was she testimony to the turned them re nothing dangerous character. It was held that her about their concurring negligence. turning at most was 157, plaintiff was City al., et Gerber v. Kansas In with a fuse buried age. cap partly of attached was- twelve The. immediately plain in front of up dirt which had been thrown loose of pile the fuse showed of the tiff’s home. Several inches of outside too, cap ap case, In would be to have the earth. the fuse and said pearance having As in Diehl of been discarded or thrown away. innocently by a case, was one child. act of done Co., City Light, Heat & Power 163 In Moore v. Jefferson Mo. explosive, being possession charge of App. 266, the a servant evening, placed by certain was him the defendant under porch plaintiff’s house, morning. to remain until next This dynamite knowledge of plaintiff. was without was exploded injured son, boy, her a little was shooting porch, dynamite roman candles front of and near placed porch. argued been It was under firing of candles was boy cause injury, the. holding against but the was controlling contention. The facts in that were, placing dynamite that the porch ease under the ,of by defendant’s servant done knowledge plain- was without trespass tiff, was in itself property, was gross negligence; boy nor did presence know of its there. The was, it culpable act, and the predominating through which resulted the un- witting boy. act of jurisdictions
Of the from cases cited injuries other where there were explosions resulting from the act of the or of some company persons one in the the plaintiff, nearly involved in young all, were children. In Olson Gill v. Co., Home Investment 58 boy 151, Wash. was party concerned years. thirteen In Bagwell (Tex. App.), v. Civ. 206 S. 371, Lubbock W. it was a years. child of In nine Juntti Oliver Mining Co., Iron 119 Minn. 518, years. it was a of six In child Akin v. Bradley Eng. & Machine 98, 48 Co., years. Wash. it was a child of eleven In Vills City Cloquet, 277, 119 Minn. it years. was child six In Sandeen v. Tschider, 252, years. Fed. child of eleven In Mattson Minn. & N. W. Railroad 503, L. R. A. it was a child of years. nine In v. Harlow, Powers 507, Mich. it eight a child years. In Kiel, Eckart v. 114, 123 Minn. it was a boy of fourteen years. Miller v. Chandler, a Ky. child of 8½ age. In Barnett Mills, v. Cliffside C. 576, N. it was a child years. parties eleven In others the were referred to as children. *10 y. Kennedy QuaRry Construction & 1926} exposed inor was so explosive substance many these cases the In o£ thrown something or might indicate was a abandoned such sur something or near the nearly upon all it was away. them In very In young children. accessible to ground, readily face of involved, considering age child children them, few of or cir object found, did the which and- the under circumstances wrongful taking, appropriation consciously indicate a cumstances property of another. of the cited in the eases the circumstances proper
It is to note somewhat negli contention that plaintiff, their by counsel for to sustain in plaintiff’s cause of the gence was the proximate of the defendant caps and fuses tailing in jury, that the act of Schneider in exploded and the act the lot where it Kauffman not break the causal lighting it in the did the fuse and connection the defendant’s between In Home Invest to. Olson v. Gill The Diehl case been referred has .age years 151, boy nearly a fourteen
ment Wash. discovered de dynamite, and in some loose box, a sticks stored only a short dis a which toilet, on a was situated fendant shelf a school streets, within three blocks of tance from two and was house, caps were also and fuses stored the toilet. Another and there found in boy caps of about same fuses which were years age, took boys, all about the toilet. Two or three thirteen cap fuse, and a undertook to dynamite, one of the sticks injured by dynamite. explode plaintiff The the case was explosion, bqys pry caused one of the undertook dynamite it. It away stick he had attached from the anything appear does not the case attempt finding, explosives, do with the outstanding explo facts in the use them. case were these toilet; lying sives were left a that the door of shelf very kept locked'; house and toilet was not that it was near a school streets, boys occasionally toilet, near thei as the two went to the All fourteen defendant knew. concerned under age. Bagwell, 371,. of Lubbock v. 206 S. W. boy age. home, his the defendant was nine Near construct ing using explosives. day?s sewer, and was At end of the . work, plate placed foreman a box of on house, belonging chicken father shed or abutting upon alley. unlocked, box, were' in red plate ground. placed and were on the shed about five feet from shed, boy playing While the near the the box attracted his atten tion, up dynamite caps. and he climbed and took from the box two evening home, He took the next undertook to them solder *11 ' Supreme Missouri, Vol. Couet doing so rod, heated, using ivhieh he together by a of iron intervening cause only cap injured him. The exploded and near with urged playing was plaintiff was that while he caused where fire, sat in the room his father and mother they were said time cap explode. that at However, stated boy or what engaged reading had, what the and did know very Diehl similar to tlie trying facts, do. its is, was The case case. boy a 277, plaintiff was Cloquet,
In Vills v. Minn. using a crusher age. six defendant had been stone The improvements. purpose crushing a vacant lot stone for street for forty Its tool stood feet back from After house about road. supervision and it work was finished tool left without house was it. de- easy boys was in condition where The it was enter boys fendant had who explosive caps left the tool house. Some caps, had been in procured the tool house and threw some of days a companion. playing out at Two or three later the boys with some It house, caps. other near the tool one found bright stone, was proceeded and he to hammer it with a attractive which an explosion holding caused and his The was de: ought anticipated fendant might that children enter the tool explosive caps house shed exposed, get into left caps, and, box of they might leave some them around be by found injury might other and that children result. Granger Mathis Brick & Co., 634, Wash. Tile boy age. eleven using The defendant had been ex
plosives, kept them in an enclosure made wooden door in front of an excavation in a hillside. The door was never locked, danger sign had a upon it. In vicinity, immediate petrified found, wood been and children and others were ac frequent customed to search of it. The inflicted case, in that were found in thé bucket of an hoisting elevator used for soil near-by from a pit. They by boys, found cap and a pocket fell out of the one playing while ground, day the school two after wére found. up picked which fell pocket from the boy. the other He was injured afterward picking while itat with a hairpin. In that also ease mother knew he had the cap, but there was no evidence that she anything knew about its character. In Clark Dupont Powder 94 Kan. agent the de-
fendant shooting well, after had left quart about a of the ex- plosive, solidified glycerine, lying near the well. As stated in opinion, one Joe McDowell, son of the owner of the farm whereon was, the well employed who was by the contractor who bor- Kennedy Quarry & Construction injury- fearing’ it would explosive, well, saw the ing the protested His mother hour. him at the dinner it home carried an abandoned took it to premises, and he keeping it about against grave- the house. distance from the farm some grave-yard on bodies, and or four containing three yard small, dynamite within the placed the by a stone He surrounded fence. up. partially ground, and covered in a crevice near enclosure children, some years, it was found lay two It there for its nature. not know injured plaintiff, who did of whom was evening left it. On the same handling it some extent they After *12 expressed opinion the it his uncle who of them described one following day dynamite. On the tallow and not it was some sort of boy being hunting, re- and another out plaintiff and his brother the up grave-yard picked of them the turned to the one article home, purpose breaking piece off a to take hit it on a rock for the explosion resulted. sequence, Under their contention that the natural and continuous necessary plaintiff’s injury, between defendant’s leaving broken, and that the not the proximate plaintiff’s injury, counsel have cited numerous 958; 200 Assn., Sadler, eases: Thornton v. Ionia Fair N. W. Kidder v. 159; Co., 280; 103 Atl. Hale v. & T. 183 Pacific T. Pac. Stone v. Rail road, 171 536; Bradley 572; King 223 v. Thompson, Mass. v. Pac. 174; 196 Y. Smart, Flaherty Stations, Inc., 250 Mass. v. N. Metro Supp. 2; Watertown, 464; Clark, Horan v. 104 N. 147 E. Nicolosi 971; Bates, 281; Perry Pac. 21 Afflick v. R. I. Rochester Lime 60; 49; 219 Telephone Co., N. Y. Hall v. N. 214 Y. N. Y. Beetz Brooklyn, Y.) App. (N. Div. 382. The most of the cases by sides, cited here cases, counsel for both and other are cited in the extensive 434, annotations to be found 43 A. L. R. an notation in L. 1250, A. R. 1250. annotation L. R. A. upon subject intervening affecting act of a child as question damage property cause of or person by third explosion. fire or It is stated that the answer question to the is one which upon application turns of the test to the particular facts adopted case. test itself is that stated 22 Ruling Law, page Case 133: intervening “Was the efficient cause a new independent acting force, causing and of itself in and superseding original wrong complained of, so as to make it remote in causation, although the chain of may ’ ’ furnished condition which the possible. was made After quoting foregoing majority it is said: “The the cases treat the question viewpoint as to intervening whether or not of the child ought must or to have been foreseen, recovery being Supreme Missouri, Vol. COURT con- expected, reasonably to be providing the act was barred ’’
(cid:127) expected. have been trary could not where it among facts, closely like this no case have found We ex cited among those briefs, in their or by counsel cited cases nearly all They are referred. we have to which tended annotations children— immediately parties concerned in which the cases years. them, persons fourteen many under something agency was left very young, child was in child was child, abandoned, readily accessible or jured by experiment explosive, little his own proximate cause. In some of them the question discussion of the applied trespasser upon premises doctrine was child was duty except nega defendant, to whom the defendant owed no wantonly recklessly expose injure tive one not to him to him danger. Sadler, Clark, 117 Me. 169 Cal. Kidder v. Nicolosi v. Telephone Hale v. Telegraph Co., App. Pacific & Cal. are of this class. eight-year-old boy the last case an named entered storehouse
.In pried defendant, open dynamite caps. a wooden box and removed gave He boy years old, some of them to another seven who was in- jured firing pistol. toy them with a knew Neither them dangerous boy character of the caps, but the who took them knowing wrong admitted to take as he did. It was held *13 negligence that the proximate the defendant not the of plaintiff’s injury, since the defendant anticipate was not bound to wrongful boy, act of the older and that his connection with the plaintiff’s injury was to be deemed as that an adult. Other cases of like among character are those cited brief defendant. In other of cases, in considering that the child awas trespasser, exception was made highly because of the dangerous character of to which access, he had consequent and the duty commensurate of the defendant, carefully guard young chil dren from highly dangerous such agencies, though even might child trespasser. be a In this class are Barnett v. cases Mills, Cliffside 576, 167 N. C. and Fisher v. Burrell (Ore.), 241 Pac. many and other might cases which be mentioned, recognizing the exception. The children involved in the cases first mentioned such a tender ages so far below the of Schneider Kauffman, that the application of doctrine, based on the fact that such children were trespassers, may be somewhat extreme. It is not necessary go so far in this But, ease. the cases which gave to the plaintiffs, chil- dren of age, tender the benefit of the exception, although they might be trespassers, are not close in their this application to the facts in case, if ages of Schneider and of Kauffman are to be considered Kennedy Quarry & Construction1 1926] be- considered that Schneider is further weight, and given dne own forbidden, into the for his went invited nor ing neither taking away caps, opening bos amusement, and that wrong- trespasser least, clearly conscious was, in that among down de- those who went into is evidence There doer. younger Schneider, than there quarry there were fendant’s very young testimony children did no so. The is evidence purpose went for down into swim- those who went always ming they ladders, went down pool, distance more than feet. part caps, not While the here did taken, purposes know and can no sense for the de- yet termining regarded trespasser, as a trespass the issue here be acts of Schneider the other Schneider and Kauffman inter- defendant plaintiff’s vened between independant injury, in producing as and efficient causes proximate cause, The definition the term several times cited (Dickson approval by Railway, this court Mo. l. c. Fayette Railroad, Jacquith Inc., Kane v. R. Plumb, 91) 254 W. S. follows: “The cause of an event is which, in a sequence, natural and continuous unbroken event, cause, produces new and without which the event would' not have occurred.” Under all the circumstances shown we conclude plaintiff’s that the essential failure of the case is the intervention alleged negligence, between plaintiff’s injury, persons named, defendant, acts other than not to be anticipated by defendant, and of a character original which made the negligent act of defendant remote, superseded it. The act of child, that of a or one merely concurring negli gence, but was nearing the act of maturity, moving inde pendently, and wrong-doing, conscious of through his association with Kauffman and latter, the act of the in efficient tervening cause, which defendant was not bound anticipate, and the order overruling trial court motion is af firmed.
Seddon, C., dissents. *14 PER foregoing opinion CURIAM:—The Lindsay, C., adopted opinion as the All judges court. concur, except Ganit, J., sitting.