112 Ark. 593 | Ark. | 1914
(after stating the facts). The court was correct in refusing to tell the jury that the act of the appellee, Neal Waggoner, in lighting the match and placing the same over the barrel, was the proximate cause of the injury. Neal Waggoner was only ten years of age, and it would not be correct to say, as a matter of law, that one of such tender age was guilty of contributory negligence, or that his act, which was the immediate cause of the explosion, was a new and independent force producing the injury and the proximate cause thereof so as to relieve the appellant of liability, provided it was negligent in placing and leaving the empty alcohol barrel upon the platform of its station at Ward. In other words, if appellant was negligent in placing the barrel on its platform at Ward, then such negligence would be the proximate cause of the injury and appellant would be liable for such negligence, notwithstanding the act of the appellee Waggoner in striking the match which produced the explosion. See Pittsburg Reduction Co. v. Horton, 87 Ark. 576; St. Louis & S. F. Rd. Co. v. Williams, 98 Ark. 72. In these cases the principle is recognized “that negligence in unnecessarily leaving an explosive exposed so that children could have access to it would be the proximate cause of an injury resulting therefrom,” under circumstances which showed that the act of the child in setting off the explosive was the “natural sequence of antecedent events and ought to have been anticipated by any person of ordinary care and prudence.”
To sustain their judgments, appellees rely upon whait is known as the doctrine of the turntable cases, which has often been approved by this court. The trial court correctly announced the law applicable to such cases, and if the facts bring the present case within that doctrine the judgments should be affirmed.
In the case of St. Louis & S. F. Rd. Co. v. Williams, supra, the Chief Justice, speaking for the court, succinctly stated the rule of the turntable cases as follows: “Where the owner permits to remain unguarded on his premises something dangerous which is attractive to children and from which an injury may reasonably be anticipated, ’ ’ he may be liable. See, also, the recent case of Nashville Lumber Go. v. Busbee, 100 Ark. 76-91, where the doctrine is reiterated.
As we view the record, the above doctrine has no application for the reason that, in our opinion, the undisputed evidence shows that appellant was not negligent in placing the empty alcohol barrel upon the platform of its station at Ward. The court told the jury that the mere fact that there was posted on the end of the barrel a caution notice would not of itself be sufficient to establish negligence against the defendant. This declaration of law was correct, because the undisputed evidence shows that the tag containing the caution was placed upon barrels that were filled with explosives for shipment and not upon empty barrels. The shipments of empty alcohol barrels, under the rules of the company, were not required to have caution tags placed upon them, and a tag placed upon such a barrel was no notice that such barrel was dangerous.
The .undisputed evidence shows that the agent in charge of the station at Ward, where this barrel was set upon the platform, did not know that it was explosive in character, and he had not even seen the tag that had been placed upon the barrel when it was an original shipment, full of alcohol. He could not have been expected to take notice of the cautionary tag, because such a tag was not required to be placed upon empty barrels.
There is no testimony to show that the agents and employees of appellant, who were charged with the duty of storing this barrel at its place of destination, had any knowledge that by exposure to the sun, through chemical processes, explosives would be produced and that such barrel would therefore be dangerous when exposed to children who might be in the habit of frequenting the station platform. Such knowledge the employees of the appellant would not be expected to have. It could not be reasonably anticipated that such dangerous agencies would be created under such circumstances, nor could it be reasonably anticipated that children, who are in the habit of frequenting the station platform, would extract the stopper from a barrel and play with the same or place a lighted match upon or within the same. These conditions and causes, we think, under the undisputed evidence, are entirely too remote and conjectural to be the basis for actionable negligence. It would not be reasonably anticipated by the servants of appellant having in charge the handling of the empty barrel that children would be attracted to it and would make a plaything out of it. In our opinion, there is nothing in the appearance or structure of an empty barrel, which is closed up at both ends, that is calculated to attract the attention of children in play, and the appellant, in the exercise of ordinary care, could not reasonably anticipate that an injury would result to appellees in the peculiar manner disclosed by the facts of this record.
As was aptly said in Catlett v. Railway, 57 Ark. 461, “The youth of the person injured will sometimes excuse him from concurring negligence, but no amount of youthful recklessness can supply the place of proof of negligence on the part of a defendant sought to be charged on account of negligence.”
There is no evidence to sustain the verdict, and the judgments are therefore reversed and the causes dismissed.