Morse v. Buffalo Tank Corp. , 280 N.Y. 110 ( 1939 )

Though errors in rulings may require a new trial, the evidence establishes, in my opinion, a cause of action for damage resulting from injuries to the plaintiff caused by defendant's negligence. The defendant conducted its business upon an uninclosed lot abutting upon a street where boys congregated for play. In its business the defendant used gasoline and naphtha. Employees of the defendant were permitted to wash paint brushes and their clothes and hands in gasoline. The waste gasoline, as it dripped from the spigot of a gasoline tank, was collected in drip cans. Boys playing on the street were suffered to come upon the defendant's premises and to take away waste gasoline or naphtha. In their play they would at times light bonfires in the street and would throw upon the fires the inflammable liquid so taken. All this was known to the employees and agents of the defendant, yet the defendant continued to leave drip cans of gasoline where boys might take them. Some boys did just what the defendant with that knowledge might have anticipated they would do. They came upon the defendant's land, took away a drip can of waste gasoline and threw the gasoline upon the fire. The gasoline flared up and severely burned the infant plaintiff who, it appears, had not been a party to the trespass upon the land of the defendant and was an innocent spectator of the fire on the street.

The plaintiff's cause of action does not depend upon the doctrine of "attractive nuisance." That doctrine has been rejected in this State. Where the doctrine is accepted it serves to excuse the trespass of children attracted by a dangerous nuisance upon private property. The infant plaintiff was not a trespasser. He was injured while lawfully on the street by exposure there to a danger created in part by the defendant's user of its premises abutting on the street and in part by the wrongful act of other boys in taking the gasoline from the defendant's premises and their negligent act in throwing it upon the fire.

"By acquiescence in the misuse of his property by others, an owner may become, for practical purposes, a participant in such misuse." (Ford v. Grand Union Co., 268 N.Y. 243, 251.) Lax control of employees in the conduct of a business on premises abutting upon a public street or of persons suffered to come upon the premises may cause unreasonable risk of bodily injury to others upon the street. Where the owner realizes, or should realize, that persons whom he can control are using his land or his chattels in manner which involves such unreasonable risk of bodily harm to others he may be subject to liability for resultant injury if he fails to exercise reasonable care to prevent such use. (Cf. Fletcher v. Baltimore Potomac R.R.Co., 168 U.S. 135; Hogle v. Franklin Mfg. Co., 199 N.Y. 388; American Law Institute, Restatement of the Law of Torts, §§ 313, 317, 371.) In such case "the owner of the property or the employer is under a duty to exercise reasonable care to prevent injury which, as a reasonably prudent man, he should know may otherwise result. Indeed, the problem presented in each case is not so much whether the duty exists, where the employer has knowledge or notice that lax control may result in injury to others, but whether in the particular case such knowledge or notice was present." (Ford v. Grand Union Co.,supra.)

In this case the evidence supports findings that the defendant knew that boys, at times, would come upon its premises and take away waste gasoline for use in dangerous play upon the street; and that, having such knowledge, the defendant, if it continued to leave gasoline unguarded where boys would be tempted to take it, should have anticipated that injury might follow to persons lawfully upon the street. Temptation to children to trespass may not, in this State, excuse a trespass by children, who succumb to the temptation, or place upon the occupier of land any duty to exercise care for the safety of the youthful trespassers, but where the occupier of land knows that he is creating or maintaining upon his lands a condition which lures children to trespass and through their trespass to endanger the safety of persons lawfully on the street, then the conditions maintained upon the land constitute a proximate cause of injury suffered by the wayfarers on the street. Towards them, at least, the occupier owes a duty of care, and intervening negligence or wrong by third parties breaks the chain of cause and effect, connecting conditions maintained by the occupier of the land with the injury suffered by a wayfarer on the street, only if the occupier of the land, in the exercise of reasonable care, should not have anticipated such intervening wrong.

"The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

"(a) the actor at the time of his negligent conduct should have realized that a third person might so act." (Restatement of the Law of Torts, § 447.)

Natural laws may in some cases directly and inexorably lead from known cause to known effect, while in other cases human action, variable and difficult to predict, intervenes and gives to known cause an effect it would not otherwise have. The test of responsibility for injury caused by act or neglect is always whether a reasonably prudent person would anticipate that from particular act or neglect, injury to another might follow. Where human intervention by third parties, whether by lawful or wrongful act, may be foreseen by the prudent, such intervention must be taken into account. If the course can be charted in advance from cause to injury it is unimportant whether the course is dictated by inexorable natural law or by arbitrary human act.

The judgments should be reversed and a new trial ordered.

CRANE, Ch. J., O'BRIEN, HUBBS and RIPPEY, JJ., concur with FINCH, J.; LEHMAN, J., dissents in opinion, in which LOUGHRAN, J., concurs.

Judgments reversed, etc.