138 Minn. 195 | Minn. | 1917
Action by Lars M. Peterson for injury to his minor child, resulting from the explosion of a dynamite cap. Plaintiff had a verdict of $10,000 for the benefit of the child. Upon motion the trial court granted a new trial, unless plaintiff remit the sum of $5,000 therefrom, in which event a new trial was denied. Plaintiff filed his consent to the reduction and defendant appealed.
The defendant owned a farm of 80 acres in Murray county. Prior to March 1, 1916, in clearing the same, he used dynamite caps to blast stumps. He had a few caps left in a small box, which he placed and left upon the plate over the north wall in the granary on the premises. This plate was 9 feet and 10 inches from the floor. The studdings were’ 16 inches apart. There was a board partition 3 feet and 10 inches high extending north and south across the granary, the north end of which was nailed to the west side of the studding immediately east of where the caps were. It was 6 feet from the top of this partition to the top of the plate. Two feet below the plate was a girder or brace on the studding. Bast of the partition, between the two studdings next to it and 4 feet and 5 inches below the plate, was a cross piece which is referred to as Number 5. Upon the trial plaintiff testified that, aside from the above, there was a cross piece on the studding about 2 feet above the partition, and immediately above this cross piece was a short board nailed onto the side of the studding, extending out about 8 inches, used for hanging articles on.
The plaintiff contends that, on March 1, 1916, when he moved upon the premises with his family, under a lease from the defendant, and took
The defendant contended upon the trial, and there was testimony offered to the effect, that there were no cross pieces upon the studding above the partition at the time he turned the premises over to plaintiff, and that if there were any such at the time the boy procured the caps, they must have been placed there after the plaintiff went into possession
It may be said that the placing of a box of such caps upon a plate 9 feet and 10 inches above the floor in a granary would not in itself constitute a negligent act; but if, at the time of so placing the caps, there were steps or other means by which a boy of immature years might reach them, quite a different question might arise. If, as claimed, defendant turned the dynamite and caps over to plaintiff for use in blasting operations, or if plaintiff was expressly informed of the presence and the location of the same in the granary, and he thereafter placed cleats upon the wall of the granary, thereby making the caps readily accessible to the boy, such act on his part would, in our opinion, constitute an independent, intervening cause which might well be considered the proximate cause of the injury, even though defendant were negligent in the first instance. Finkbeiner v. Solomon, 225 Pa. St. 333, 74 Atl. 170, 24 L.R.A.(N.S.) 1257; Pollard v. Oklahoma City R. Co. 36 Okla. 96, 128 Pac. 300, Ann. Cas. 1915A, 140. We are of the opinion that this phase of the case, and the testimony bearing thereon, should have been submitted to the jury under proper instructions. The court, however, said to the jury at the conclusion of the charge: “There was one question I intended to have called your attention to and that is the claim that the defendant had turned this dynamite and dynamite- caps over to Lyman Peterson’s father: I charge you upon that point that there is no evidence here that Lars Peterson, the nominal plaintiff here, accepted that, so that you are not to consider that as a defense at all.” This was error for which a new trial must be granted.
In the event of a new trial, it may be said that it is a well settled rule that if, subsequent to the original negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the injury, the original negligence is too remote. In this case the mother testified that Lyman brought a cap and showed it to her; that she examined it and gave it back to him; that she did not know what it was, but thought it was some kind of an empty shell, and that she afterward told the plaintiff about the boy’s having the same. This testimony, taken in connection with the testimony of the hired man about his conversation with the boy at the well
Reversed and a new trial granted.