Hale v. Pacific Telephone & Telegraph Co.

Action to recover damages alleged to have been sustained as a result of defendant’s negligence. The jury rendered a verdict in favor of plaintiff upon which judgment was entered and from which defendant has appealed upon the judgment-roll accompanied by a bill of exceptions.

The facts out of which the accident grew and concerning which there is little controversy in the evidence are as follows: At the time when plaintiff sustained the injury, defendant was engaged in constructing and operating a telephone system in the city of San Diego. For its use as a storeroom for supplies and material required in its construction work, it occupied an uninclosed cottage in the rear of which was a lattice porch with an open space of some four or five feet for entry. Upon this porch was a shelf platform two and one-half to three feet above the floor, and on Saturday, the day preceding the accident, defendant’s employees placed upon this shelf a wooden box wherein, underneath some excelsior packing, was deposited a tin box containing dynamite caps of a high explosive character and dangerous to persons unacquainted with the care and handling thereof. The top of this wooden box was covered by a board, one end of which was flush nailed and the other lightly tacked. Walter Hadley, a boy eight years of age, lived with his parents in a house adjoining defendant’s said storehouse and between which and the Hadley cottage there was no fence. At times Walter and other boys played in a driveway entering the lot along the side of the storehouse, but none of them had ever gone upon the porch. On Sunday, June 6th, all of defendant’s employees being absent therefrom, Walter Hadley entered upon this porch and, seeing the wooden box upon the shelf, pried off the cover, raised up the excelsior packing and, finding the tin box, opened it and took therefrom about twenty of the dynamite caps, of the character and danger in handling which he was wholly ignorant, but thought they could be used in a toy cap pistol which one of his playmates had. On the same day he gave some of these caps to the plaintiff, a boy of the age of seven years, who likewise, by

No purpose could be served in a review of the many authorities cited by counsel from other jurisdictions wherein similar questions have been involved. Suffice it to say that most of them involved features clearly distinguishing them from the instant case and were decided upon principles not applicable to the facts here presented.

[1] In order to recover damages for an injury alleged to be due to negligence of a defendant it must be made to appear that such negligence was the proximate cause of the injury sustained. Conceding that defendant was culpably guilty in the care of the dynamite, such want of care was not the direct and immediate cause of plaintiff’s injury, since, notwithstanding defendant’s negligence, the accident would not have occurred except for the intermediate wrongful acts of Walter Hadley in unlawfully breaking open and taking the caps from the wooden box in which they were deposited and giving them to plaintiff. Upon the admitted facts, was defendant’s negligence the proximate cause of plaintiff’s injury, or must it be attributable to the intervening unlawful act of a responsible third person? [2] The rule, as we understand it, applicable to such cases, is that where the original negligence of a defendant is followed by an independent act of a third person which results in a direct injury to a plaintiff, the negligence of such defendant may, nevertheless, constitute the proximate cause thereof if, in the ordinary and natural course of events, the defendant should have -known the intervening act was likely to happen; but if the intervening act constituting the immediate cause of the injury was one which it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, then, since the chain of causation is broken, he owes no duty to the plaintiff to anticipate such

[4] The proximate cause of plaintiff’s injury was Hadley’s wrongful act, without which, notwithstanding defendant’s negligence, the accident would not have occurred. And since it was the wrongful act of an independent third person and not intended by defendant, and by reason of its nature one as to which it was, under the circumstances, not charged with the duty of anticipating as a natural and ordinary consequence of its negligence, it is not liable for the injury. In support of these views reference may be had to the following, among other, cases: Chicago etc. Ry. Co. v. Elliott,

Our view of the case as herein expressed renders it unnecessary to consider the error predicated upon the action of the court in overruling defendant’s general demurrer to the complaint. We may say, however, that, in our opinion, the allegation that both plaintiff and Walter Hadley, by reason of their extreme youth, were ignorant of the dangerous character of the dynamite caps, coupled with the allegation that defendant permitted Walter Hadley to go upon the premises and carry therefrom a large number of said dynamite caps, when measured by what is said upon a similar question in Cahill v. E. B. & A. L. Stone & Co., 153 Cal. 571 , [ 19 L. R. A. (N. S.) 1094 , 96 Pac. 84 ], renders the complaint sufficient as against the demurrer interposed. [5] If-defendant knowingly permitted a child to take such dangerous instrumentalities from its premises, it would be charged with the duty of anticipating the probable result that they would be exploded by himself or playmates, thus causing injury.

The judgment is reversed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 28, 1919.

All the Justices concurred.