Fitzpatrick v. Rose Donahue Realty Co.

Defendant owns an apartment house in St. Paul. Charles Narr, tbe janitor in charge of the building, had an apartment in the basement, with entrance from a back yard. His family consisted of a wife and two children, a daughter, 11 years old and a son, 8 years old. These children played in and about this rear yard and had a children’s play house there. Helen Fitzpatrick, 8 years old, lived about a block away. With other children she played habitually with the Narr children in their back yard with the knowledge of Mr. Narr and of every one who paid much attention to the premises. About July 15, 1920, defendant hired Patrick Leo, a contractor, to do some brick work in the basement of the building. Leo hauled some brick, sand and an ordinary barrel 2/3 or 3/4 full of slacked lime and placed them near the building in the back yard in which *129the children played. By reason of the progress of other work he was unable to commence work at once and he left the material there. The slacked lime was left covered with i or 5 inches of water and the barrel was left covered with boards. The barrel of lime and the other material remained there until July 26. In the meantime the water had soaked in and the lime had become so that it could be handled and moulded. The children played with it and moulded it in their play into dishes and mud pies. The janitor saw them doing so: On July 26 several children, including Helen and the Harr children, took some of the lime in a toy wagon to the home of Helen and were playing with it there, when some larger boys came along and began to tease them, and, in the process, one of the larger boys picked up some of the lime and threw it at Helen, hitting her in the eye and causing impairment of the sight. Plaintiff, as father of Helen, sued for damages. The court directed a verdict for defendant. -'Plaintiff appeals.

The decisive question in the case, as we view it, is whether there was any evidence that the defendant was guilty of any negligence. The trial court held there was not. With this we agree.

We shall not enter upon a discussion of the question of whether Helen was a licensee or an invitee. Perhaps she was the latter. She played with the Narr children in their back yard as all children play with the children of neighbors in their back yard. Everyone interested knew this. The essential facts are, however, that slacked lime is a common article of building material in general use among building contractors. It is frequently left exposed on lots and in public thoroughfares at places convenient to building operations. It is not naturally especially attractive to children and is not inherently any more dangerous than many other articles of common use that are ordinarily left within reach. It may be handled without harm. It is only dangerous when put into the eye or in contact with some tender member. It has not even a natural tendency to splash or scatter. This barrel of lime was put in a place convenient to the work and was kept and protected in the usual manner, in fact more protected than is often the case. The conduct of defendant was only permissive. The test applied in such cases, as stated in a *130recent decision, Rothenberger v. Powers F. T. & S. Co. 148 Minn. 209, 181 N. W. 641, is that “if a man does an act, and he knows, or by the exercise of reasonable foresight, should have known, that in the event of a subsequent occurrence, which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury.” There was so little cause in common experience to apprehend a casualty of the kind that happened in this case that, in our opinion, defendant was not under duty to cause the removal of the material. Decisions in other states sustain this decision. Zartner v. George, 156 Wis. 131, 145 N. W. 971, 52 L. R. A. (N. S.) 129; Beetz v. City of Brooklyn, 10 App. Div, 382, 41 N. Y. Supp. 1009; Hall v. N. Y. Telephone Co. 214 N. Y. 49, 108 N. E. 182, L. R. A. 1915E, 191.

The case of Dahl v. Valley Dredging Co. 125 Minn. 90, 145 N. W. 796, 52 L. R. A. (N. S.) 1173, is instructive, though it is not directly in point, for there the children injured were trespassers and the “attractive nuisance” doctrine was invoked.

Order affirmed.