Flaherty v. Metro Stations, Inc.

Headnote

Negligence — when owner of premises not negligent in leaving thereon open can containing gasoline accessible by children.

Flaherty v. Metro Stations, Inc., 202 App. Div. 583 , affirmed.

Appeal from a judgment, entered July 11,1922, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The plaintiff, nine years of age, with two other small boys of about the same age, built a bonfire. They .then went to the premises of the defendant and took some gasoline from a milk can standing on the platform. They carried the gasoline

in tin cans, which they found. While going from the defendant’s premises back to the bonfire, they threw gasoline on each other’s clothing. Whey they reached the bonfire, which was some considerable distance from the defendant’s premises, one of the boys poured some gasoline from. a can on to the fire. It flashed up and burned the plaintiff. This action was brought and has been maintained on the theory that it was negligent for the defendant to leave gasoline in an open milk can at a place where boys were in the habit of going.