Opinion
No. 28452.
March 24, 1930.
1. EXPLOSIVES. Liability of owner of premises for death of child in explosion of steel drum containing paint held for jury.
In action to recover for death of seven year old child by reason of explosion of steel drum containing paint situated on defendant's premises, liability of defendant under evidence authorizing inference of knowledge of former explosion held for jury, regardless of fact that subsequent injury was inflicted in somewhat different manner from that on former occasion.
2. EXPLOSIVES. Keeping explosive substance where children are accustomed to play is negligence.
Owner of premises keeping an explosive substance where children are accustomed to play and are liable to be injured is negligent.
3. APPEAL AND ERROR. Cross-assignment presenting only question of error which resulted in no harm will not be considered.
Where cross-assignment of errors present question which if constituting error resulted in no harm, it will not be considered on appeal, though another case growing out of the same circumstances is pending in lower court, since to comply with request would result in court giving a mere advisory opinion.
APPEAL from circuit court of Tishomingo county. HON.C.P. LONG, Judge.
W.C. Sweat, of Corinth, for appellant.
The attractive nuisance doctrine, or what is otherwise known as the doctrine of the turntable cases, imposed liability where such injuries are the result of the failure of the owner, or person in charge, to take proper precautions to prevent injuries to children by instrumentalities or conditions which he should, in the exercise of ordinary judgment and prudence, know would naturally attract them into unsuspected danger.
45 C.J. 758; Sioux City v. Stout, 17 Wall 657, 21 L, Ed. 745.
The disposition of the courts of the country, and especially of this court, has been to rather restrict the doctrine as to the turntable cases, rather than to extend and amplify it.
Thompson v. R.R. Co., 105 Miss. 636, 63 So. 185; 47 L.R.A. (N.S.) 1101, and Salter v. Lumber Co., 137 Miss. 229, 102 So. 268; Bonhomie H.S. Ry. Co. v. Hinton et al., 124 So. 271; U. Zinc Chem. Co. v. Britt, 258 U.S. 268, 42 Sup. Ct. 269, 66 L.Ed. 615, 36 A.L.R. 28; Lucas v. Hammond, 150 Miss. 369, 116 So. 536; McComb City v. Heyman, 124 Miss. 524, 87 So. 11; Totty v. Lee County Gin Co. (Miss.), 110 So. 125.
In order for the attractive nuisance doctrine to apply, the thing must be attractive or alluring to children such as will ordinarily entice a child to play with it.
Salter v. Dewese Gamble Lbr. Co., 137 Miss. 229, 102 So. 268; S. Zymczac v. Schillinger Bros. Co., 197 Ill. App. 585; Newman v. Barber Asphalt Paving Co., 190 Ill. App. 636; Colman v. Cohen, 213 Ill. App. 597; 45 C.J. 765; Bonhomie C.R.R. Co. v. Hinton et al., 124 So. 241; Brown v. City of Minneapolis (Minn.), 161 N.W. 503; Tomlinson v. Vicksburg S. P.R.R. Co. (La.), 70 So. 174; 45 C.J., sec. 161, p. 764; 20 R.C.L., sec. 11, p. 16.
The explosion of a barrel or drum is not a thing which would ordinarily be anticipated, or which would be expected to happen in the ordinary course of affairs.
St. Louis, etc., R.R. Co. v. Waggoner et al., 166 S.W. 948; Catlett v. Railway, 57 Ark. 461, 21 S.W. 1062, 38 Am. St. Rep. 254.
The owners of land are not required in using it for legitimate purposes to guard against every possible danger to children.
Thompson on Negligence, sec. 1030; 20 R.C.L., sec. 73, p. 84; Thompson v. I.C.R.R. Co., 105 Miss. 636, 63 So. 185; Cox v. Ala. Water Co., 112 So. 352; Vicksburg Gas. Co. v. Ferguson, 140 Miss. 542, 106 So. 258.
To constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of the negligent act.
45 C.J. 911, sec. 482; Tatum v. Seaboard Air Line Mfg. Co., 113 So. 671; 45 C.J., p. 913, sec. 483; Wilborn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Railroad Co. v. Brooks, 78 Miss. 91; Meyers v. King, 72 Miss. 1; Robinson v. Gage, 27 So. 998; I.C.R.R. Co. v. Wooley, 77 Miss. 927.
An accident outside the range of ordinary experience is not actionable.
Allison Mann Co. v. McCormick, 118 Pa. St. Rep. 519; Thompson on Negligence, sec. 3936; Victory Sparkler Specialty Co. v. Price, 146 Miss. 193-212, 111 So. 437; 22 R.C.L., p. 121, sec. 8. J.A. Cunningham, of Booneville, for appellee.
Defendants are liable to plaintiff for the injury and death of her decedent on the theory of negligently failing to exercise ordinary care to maintain reasonably safe premises upon which these children had been by the company invited and permitted, through these years, to congregate and play as the children of the families and employees of their mill town.
Ala. By-Products Co. v. Crosby (Ala.), 115 So. 31; 45 C.J., Negligence, sec. 214, p. 766; 20 R.C.L., Negligence, secs. 51, same secs. 73-4-5, pp. 55-6; S.H. Kress Co. v. Mokline, 77 So. 858; Laurel Light Ry. Co. v. Jones, 102 So. 1.
On the theory of negligently maintaining a common-law nuisance, we submit the following authorities to sustain our views, to-wit:
46 Corpus Juris, Nuisances, sections 454-5; Practical definitions for a common-law nuisance are found in 20 Ruling Case Law, sections 1, 2 and 3; also 3 Bouvier's Law Dictionary, page 2379; 20 R.C.L., Nuisances, section 6; 46 Corpus Juris, Nuisances, sections 22 and 23, pages 657-8; especially same authority, section 504, page 830; Green v. Lake, 54 Miss. 540; National Refining Co., v. Batt, 100 So. 388; 46 Corpus Juris, Nuisance, sec. 455, Notice; also 456; King v. Vicksburg Railroad Co., 42 So. 208.
Defendants are liable for maintaining a deposit of dangerous inflammables and explosives in the midst of a child's playground.
11 R.C.L., Explosives, sections 14-17-18-19, pages 664-5-6; 1 Thompson on Negligence (2 Ed.), secs. 758-9-60; McTighee, Hughey McTighee v. Johnson, 114 Miss. 862, 75 So. 600; Hamblin v. Gano, 76 So. 633; Hercules Powder Co. v. Williamson, 110 So. 244; Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842; Evans v. Brown, 106 So. 281; 25 Corpus Juris, Explosives, sections 7-8-11; same authority, section 46; Especially Sloss-Sheffield Steel Iron Co. v. Prosch (Ala.), 67 So. 516; Laurel Light Ry. Co. v. Jones, 102 So. 1.
The defendants were chargeable with knowledge of the existence of this dangerous instrumentality owing to its location and the time it had existed at the place on their premises.
20 R.C.L., Negligence, section 11, page 15; S.H. Kress Co. v. Mokline, 77 So. 858.
Argued orally by W.C. Sweat, for appellant.
The appellee sued, and obtained a judgment against, the appellant for having negligently caused the death of her seven Year old son.
The appellant's complaint is that the court below should have granted its request for a directed verdict.
The appellant is engaged in the sawing of lumber, and owns a number of houses situated near its mill, which are occupied by its employees and their families. In 1923, there was left on its premises, by a painter who had been employed to paint the roofs of these houses, a steel drum in which some paint — some of the ingredients of which were coal tar, creosote, and gasoline — still remained. The property at that time was not owned by the appellant, but was acquired by it shortly thereafter. The children of the community were accustomed to play around or near this drum, having a playhouse, the character of which does not appear, very close to it. In 1925, several children, while playing around it, knocked the cap from its bunghole, for the purpose of obtaining paint from the drum, when the pent-up gases therein exploded, scattering some of the gas over the children and burning them painfully, but leaving no permanent injury. This occurrence according to the evidence for the appellee, was immediately reported to the appellant's superintendent or manager, who was fully informed as to what had occurred and was asked to remove the drum, which he promised, but failed, to do. The manager denied that he was informed of this occurrence, and stated that he did not hear of it until after the injury here in question was inflicted. The premises were not inclosed, and the drum was in plain view of the mill and the street, being only a short distance from each.
The appellee was living in one of appellant's houses, the back door of which was only a few yards from this drum and the children's playground. On August 7, 1927, several children among whom was the appellee's son, were playing there. A witness, who was only a few feet therefrom, stated that he heard some one strike a match, and immediately afterwards an explosion occurred which hurled the drum into the air, scattering its contents over the appellee's son, inflicting such injuries on him as resulted in his death.
The appellant's main contentions are: First, that it can be held liable only under the attractive nuisance doctrine, and that this drum was not a thing that can be held so attractive to children as to induce them to play with, or about, it; and, second, the proximate cause of the injury to the appellee's son was not the negligence, if any, of the appellant in leaving the drum where children were accustomed to play, but was the striking of a match by one of the children which ignited the gas generated by the paint, thereby causing the explosion.
The case is not an ordinary attractive nuisance doctrine case, and the appellant's liability does not depend wholly thereon. The paint drum was on the premises of the appellant at a place where children were accustomed to play, and children had been injured by an explosion of gas generated from or by the paint left therein, which fact the jury was warranted in believing was known to the appellant. If known to the appellant, it should have anticipated that children would probably again play with, or near, the drum and be injured by another explosion of its contents. That the injury here in question was inflicted in a somewhat different manner from that on a former occasion, in that the former explosion seems to have been spontaneous while the one here was caused by the lighting of a match, is of no consequence, for the explosion was from the same primary source. Cumberland Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Terry v. N.O.G.N.R.R. Co., 103 Miss. 679, 60 So. 729, 44 L.R.A. (N.S.) 1069. To keep an explosive substance where children are accustomed to play and are liable to be injured thereby is negligence. McTighe v. Johnson, 114 Miss. 862, 75 So. 600; Hamblin v. Gano (Miss.), 76 So. 633; Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842.
There might be some merit in the appellant's second contention, if the appellee's son had not been a child, as to which we express no opinion, for it can have no application here. If sound, it would bar a recovery in all attractive nuisance cases. The duty which the law imposed on the appellant of not leaving the paint drum where children were accustomed to play was to guard against their being injured by its contents while at play.
The appellee has filed a cross-assignment of errors, but no complaint is therein made of the amount of the verdict; all of them relate to the question of liability. The errors here complained of, if errors in fact they be, resulted in no harm to the appellee, and therefore cannot be here considered. We are asked to pass on this cross-assignment of errors for the reason "that there is another case growing out of the same explosion to be tried before another court." To comply with this request would result in our giving a mere advisory opinion, and this we must decline to do.
Affirmed.