113 N.E. 529 | NY | 1916
The defendant stored explosives in a chest on the bank of the Erie canal in the city of Rochester. It stored them in a public place and in violation of law. Two boys carried away some of the boxes, secreted them in a barn, and handling the contents the next day, brought about an explosion. A little boy of eight years who was near them, was killed. The question is whether the defendant may be held to answer for his death.
A narrow strip of land separates the defendant's warehouse from the Erie canal. This land is public property. Boys were accustomed to go there to play and to fish. On this public space the defendant kept a chest of nitroglycerin caps, used to explode dynamite. The caps were packed in tin boxes, which were marked "Blasting caps, handle with care;" and the tin boxes were packed in a wooden box. The wooden boxes were without marks; they had sliding covers, which were closed; and they were about one foot long and nine inches high. Each wooden box contained at least thirty-three tin boxes.
On Sunday, November 12, 1911, this chest of explosives was left open. It was seen in that condition during the afternoon and evening by the operator of a nearby bridge. The practice had been to keep it closed and locked. So far as the record shows, it had never been *63 left open before. Between five and six o'clock, John McGuire, a boy of thirteen years, and Archie Clark, a boy of twelve, went by the warehouse on an errand. There is evidence that on their way back they stopped at the chest and carried off one of the wooden boxes. They took supper that evening at the house of a friend. Before supper, they hid the boxes in the back yard. During the evening they showed the caps to their playmates. They had some of the tin boxes in their hands and other caps in their pockets. Before they left for home, they went to the yard, emptied the contents of most of the tin boxes into the wooden box and carried the spoils away. Arriving home, they hid the box in a neighboring barn. Their home was with the Perry family, and about half a mile from the defendant's warehouse.
After school hours the next day, Mrs. Perry saw McGuire in the barn, and heard him call to Clark to join him. They came out of the barn with a wooden box. She did not know at the time what was in it. They walked off, carrying the box, and the Perry boy, eight years of age, ran after them. The mother sent her little girl to call the boy back, but he was out of sight. A few minutes later, there was the sound of an explosion. McGuire and Clark and the Perry boy were killed. This action involves the defendant's liability for the death of Perry only.
The defendant stored the explosives without a permit and in violation of an ordinance. It stored them, moreover, in a public place. It thus became a wrongdoer, and answerable as such for the proximate consequences of the wrong. It became answerable, in other words, for those consequences that ought to have been foreseen by a reasonably prudent man. (Atchison, T. S.F. Ry.Co. v. Calhoun,
We are not without apt precedents for this conclusion (Moran
v. Inhabitants of Watertown,
Nothing in our ruling is in conflict with the recognition of a duty to protect the young and heedless from themselves, and guard them against perils that may reasonably be foreseen. To define the orbit of that duty is unnecessary now (Travell v.Bannerman,
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN and SEABURY, JJ., concur; HOGAN, J., concurs in result.
Judgment affirmed. *67