44 Ga. App. 850 | Ga. Ct. App. | 1932
Lead Opinion
Where the owner of premises left dynamite caps, which were dangerous explosives, in a box exposed and unguarded, beside a traveled private roadway on the premises, and easily accessible to children, who are attracted thereto, the dynamite caps at the time not being put to immediate use by the owner, and where a child eight years of age, who had come onto the premises with the owner’s permission and while using the roadway, picked up some of the dynamite caps, the dangerous character of which was not known to him, and carried them to his home, where his brother, a child four years of age, himself unaware of the dangerous character of the caps, was attracted to them by their bright
Judgment reversed.
Rehearing
On Rehearing.
It is insisted in a motion for rehearing that the language contained in the syllabus, “the dynamite caps at the time not being put to immediate use by the owner,” is not authorized by the averments of the petition; that, construing the petition most strongly against the pleader, the dynamite caps were on the roadway for the purpose of being used in the repair work or construction work being done, and there is nothing in the petition from which an inference could be authorized that the defendant negligently left the dynamite caps in an exposed position for any considerable length of time. It is insisted that the petition does not show the time of day when the accident happened, and therefore does not exclude the idea that the construction work had been temporarily discontinued for the lunch hour or some other purpose, and does not show that the defendant’s employees were not about to return to the work and the use of the dynamite caps. It is insisted that in these .respects the case differs from those cited in the syllabus. It is true that the petition indicates that construction work was in process of performance at the time the dynamite caps were left unguarded and exposed by the roadside that the children were entitled to use. Such was' the case, how
The Supreme Court decisions cited in the syllabus, which deal with' explosives picked up by children, are controlling. The rulings in Haley Motor Co. v. Boynton, 40 Ga. App. 675 (150 S. E. 862), City of Atlanta v. Guice, 41 Ga. App. 146 (152 S. E. 144), Smith v. Georgia Power Co., 43 Ga. App. 210 (158 S. E. 371), and Callaway v. Central Georgia Power Co., 43 Ga. App. 820 (160 S. E. 703), dealt with entirely different situations, and are so far different on the facts as to be .clearly distinguishable. The judgment of reversal is
Adhered to on rehearing.