41 P.2d 625 | Idaho | 1935
Appellants brought this action against the Gooding Highway District to recover damages on account of injuries received and suffered by William George Miller, a minor, caused by the explosion of a dynamite cap taken by young Miller from a building owned by respondent. In this connection the facts are substantially as follows: Respondent owns and maintains a yard enclosed by a high board fence with a gate, within the corporate limits of the city of Gooding. The building entered is located in the northeast corner of the enclosure. It had two windows, both of which were some distance above the ground, and two doors, one of which locked on the inside. On September 23, 1929, William George Miller, then nine years old,
The case was tried before the court and a jury. After appellants submitted their evidence and rested, respondent moved 'for a nonsuit, which was granted. This appeal is from the judgment on the motion, and the court’s action in this respect is the only error assigned.
The principal question presented is whether or not there was sufficient .competent evidence submitted to the court and jury upon which liability could be established against respondent and in favor of appellants. In granting the motion for nonsuit the trial court’s theory no doubt was that appellants had failed to make out a prima facie case and that no recovery could be had under the facts submitted, whereupon the jury was discharged from further consideration of the cause. A motion for nonsuit, being equivalent to a demurrer to the evidence, must be tested by that version of the evidence most favorable to plaintiff. The general rule would seem to be that trial courts should act cautiously and should carefully scrutinize all of the evidence before granting a motion for nonsuit. The rule announced in this jurisdiction is that: On a motion by defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove. (Later v. Haywood, 12 Ida. 78, 85 Pac. 494.) This rule has been somewhat amplified in later decisions of this court as will be hereafter noted.
“It is a well-settled rule of this court that on a motion by the defendant for nonsuit, after the plaintiff has introduced his evidence and rested his ease, the defendant is deemed to have admitted all of the facts of which there is
“A motion for nonsuit admits the truth of plaintiff’s evidence and of every fact which it tends to prove or which could be gathered from any reasonable view of it, and he is entitled to the benefit of all inferences in his favor which the jury would have been justified in drawing from the evidence had the case been submitted to it.” (Donovan v. Boise City, 31 Ida. 324, 171 Pac. 670.) (Hendrix v. City of Twin Falls, 54 Ida. 130, 29 Pac. (2d) 352; Denton v. City of Twin Falls, 54 Ida. 35, 28 Pac. (2d) 202; First National Bank v. Stringfield, 40 Ida. 587, 235 Pac. 897; Young v. Washington Water Power Co., 39 Ida. 539, 228 Pac. 323; Coulson v. Aberdeen-Springfield Canal Co., 39 Ida. 320, 227 Pac. 29; Schleiff v. McDonald, 37 Ida. 423, 216 Pac. 1044; Brauner v. Snell, 35 Ida. 243, 205 Pac. 558; Testo v. Oregon-Washington R. & Nav. Co., 34 Ida. 765, 203 Pac. 1065; Marshall v. Gilster, 34 Ida. 420, 201 Pac. 711; McKenna v. Grunbaum, 33 Ida. 46, 190 Pac. 919.)
“Upon a motion for nonsuit, all reasonable inferences must be indulged in favor of the plaintiff as to any facts which the evidence tends to establish. If there is a conflict in the evidence, or more than one inference may reasonably be drawn therefrom, then the question is for the jury. If, however, only one conclusion can be drawn, it is a matter for the court.” (Scrivner v. Boise Payette Lumber Co., 46 Ida. 334, 268 Pac. 19, 21.)
“Reasonable minds might well differ as to whether plaintiff was contributorily negligent as charged in the answer, from the evidence herein, and therefore the motions for non-suit and directed verdict were properly denied. (Pipher v. Carpenter, 51 Ida. 548, 7 Pac. (2d) 589; Osier v. Consumers’ Co., 41 Ida. 268, 239 Pac. 735; and see particularly
“A plaintiff should not be nonsuited unless it appears that the evidence in his behalf, upon the most favorable construction the jury would be at liberty to give it, would not warrant a verdict for him. (Black v. Lewiston, 2 Ida. 276, 13 Pac. 80; Lowary v. Tuttle, 36 Ida. 363, 210 Pac. 1006; Tipsword v. Potter, 31 Ida. 509, 174 Pac. 133, 6 A. L. R. 527.)” (Wyland v. Twin Falls Canal Co., 48 Ida. 789, 285 Pac. 676.)
Appellants seek to recover in this action upon the theory that the keeping of dangerous explosives, in the instant case dynamite caps, in the place and in the manner they were kept by respondent constituted such negligence as would render respondent liable to appellants for the injuries sustained by William George Miller. Negligence, as well, as the proximate cause of the injury, are questions of fact for the jury, where the facts, or the inference to be drawn therefrom, are in any degree doubtful or such that fair minded men might reach different conclusions from the facts. (Tendoy v. West, 51 Ida. 679, 9 Pac. (2d) 1026; Kelly v. Troy Laundry Co., 46 Ida. 214, 267 Pac. 222; Hooker v. Schuler, 45 Ida. 83, 260 Pac. 1027; Thornton v. Eneroth, (Wash.) 39 Pac. (2d) 379; Denver City Tramway Co. v. Wright, 47 Colo. 366, 107 Pac. 1074; Richardson v. El Paso C. G. M. Co., 51 Colo. 440, 118 Pac. 982; Edgington v. Burlington etc. R. Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561; Mattson v. Minnesota & N. W. R. R. Co., 95 Minn. 477, 104 N. W. 443, 111 Am. St. 483, 5 Ann. Cas. 498, 70 L. R. A. 503; Vills v. City of Cloquet, 119 Minn. 277, 138 N. W. 33; Bryan v. Stewart, 194 Ala. 353, 70 So. 123; Eves v. Littig Construction Co., 202 Iowa, 1338, 212 N. W. 154; Mathis v. Granger Brick & Tile Co., 85 Wash. 634, 149 Pac. 3; Miami Quarry Co. v. Seaborg Packing Co., 103 Or. 362, 204 Pac. 492.) It is contended that the chain of
Liability may be incurred for injuries to a child of tender years by having or leaving dangerous instrumentalities, such as high explosives, upon premises or elsewhere where they are accessible to children. (Town of Depew v. Kilgore, supra; Folsom-Morris Coal Min. Co. v. De Vork, supra; Clark v. E. I. Dupont de Nemours Powder Co., supra; Mathis v. Granger Brick & Tile Co., supra; Boggess v. King County, 150 Wash. 578, 274 Pac. 188; Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154; Pittsburgh etc. R. Co. v. Shields, 47 Ohio St. 387, 24 N. E. 658, 21 Am. St. 840, 8 L. R. A. 464; Peterson v. Martin, 138 Minn. 195, 164 N. W. 813; Birge v. Gardner, 19 Conn. 507, 50 Am. Dec. 261; Mattson v. Minnesota & North Wis. R. R. Co., supra; Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 96 Am. St. 902, 60 L. R. A. 793; Harriman v. Pittsburgh C. & St. L. R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. 507.) Although there might be no liability with reference to an adult or a child of years of dis cretion, under like circumstances. (Union Pac. R. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. ed. 434; New v. Stout, 98 Okl. 177, 224 Pac. 519; and cases immediately supra.) A child without discretion, although a trespasser, occupies a legal attitude similar to that of an adult who is not a trespasser. (Town of Depew v. Kilgore, supra; Folsom-Morris Coal Min. Co. v. De Vork, supra; City of Shawnee v. Cheek, 41 Okl. 227, 137 Pac. 724, Ann. Cas. 1915C, 290, 51 L. R. A., N. S., 672.) In such circumstances care and caution must be exercised by the owner or person in charge of such high explosives to prevent children of tender years obtaining possession of such dangerous instrumentality. It by no means follows that a property owner is an insurer of the safety of children who come upon his premises. The degree of care required of persons having the possession and control of dangerous explosives, such as dynamite caps, must be commensurate
Since this case must be reversed, with instructions to set aside the judgment and grant a new trial, we have purposely refrained from a detailed discussion of some of the propositions of law urged by respective counsel, but have confined ourselves principally to the pertinent question here involved, namely, whether or not the court erred in granting the motion for nonsuit.
From what has been said it follows that the judgment must be reversed and new trial granted, and it is so ordered. Costs awarded to appellant.
Petition for rehearing denied.