Burley v. McDowell
Burley v. McDowell
Opinion of the Court
delivered the opinion of the Court.
' On March 22, 1955, Cecil W. Burley, as next friend and father of Roy W. Burley filed suit in the district court against the McDowells, husband and wife, alleging the minority of their son and that defendants were the owners and residents of property on East Alameda avenue; that on October 2, 1954, the minor, while an invited guest on the premises of defendants, received serious and permanent injuries as a result of a fire and explosion which was caused by the negligent, careless and unlawful failure of defendants to keep and maintain the inflammable and explosive materials in a safe and proper place; that defendants were negligent in not preventing children of tender years from obtaining and playing with the explosive materials, and prayed for judgment in the approximate sum of $5500. Defendants answer is a general denial of liability. Trial was had to the court without a jury resulting in judgment for defendants, and motion for new trial dispensed with. The complaint does
The improvements on defendants’ premises consisted of the residence and four outbuildings, the one next to the residence is called a store because defendants conducted a tropical fish raising business in the out-building. This building is located about fourteen feet from the rear of the residence. Defendants have a nine-year old son named David.
Roy and David were close friends, and on the evening before they had attended a football game and Roy stayed over night with David at defendants’ home. The next morning the boys were joined by a neighbor boy about twelve years old. The three boys purchased a small, tin, toy boat, motivated by a lighted candle and took the boat to defendants’ home to play with it in the bathtub after they had locked the bathroom door. A decision was reached that the boat might go faster if it had some “fuel.” Roy and one of the other boys went out and found an empty tin can and then entered the store where they found some liquid in a gallon glass jug on the floor behind the door. They had emptied some of this into the can and returned to the bathroom and started to pour some of the liquid into the boat and the lighted candle caused an explosion and Roy received serious third degree burns. The plaintiff boy testified that the only time he had gone into this store prior to this occasion when defendant McDowell was not present was when he had been sent in there by Mrs. McDowell to get some
Plaintiff Cecil W. Burley contends that defendants were guilty of negligence that was the proximate cause of the injuries sustained by the minor, in that they failed to protect and prevent children as social guests from obtaining and playing with a dangerous substance; and further, in keeping a dangerous substance in a place readily accessible to children. Counsel for plaintiffs state that there are only two issues before the court: first, were defendants negligent; and second, was plaintiff boy guilty of contributory negligence? Defendants’ counsel insist that the finding of the court as trier of the facts is binding upon this court the same as if it was the jury’s finding. They point out that the gasoline substance was not left in the house where the children were playing and plaintiff minor was a guest, but had been left in the store, a separate building, and where plaintiff boy had been instructed not to go.
We believe a determination of the question of defendants’ alleged negligence disposes of the case without further consideration of the question of contributory negligence. We perceive no negligence on the part of defendants due to the fact that they kept this gasoline mixture separate and apart from the main residence where the children were to be found and were allowed to play and entertain each other. They kept it in a place for a lawful and reasonable purpose and in a place where this particular minor had been directed not to go. We have a different situation from that of where highly inflammable and explosive gasoline might be kept in larger quantities and at a place where children frequented and it was known to defendants that a dangerous situation could arise. The fact that they kept a small quantity of
For the reasons indicated, the judgment of the trial court in dismissing plaintiffs’ complaint was right and is affirmed.
Mr. Justice Sparks did not participate in the consideration of this case.
Reference
- Full Case Name
- Cecil W. Burley v. Charles E. McDowell
- Cited By
- 1 case
- Status
- Published