Sidney MacNEIL and Helen T. MacNeil, husband and wife, and Joe Field, Appellants,
James PERKINS, a minor by his guardian ad litem, Ernest Perkins, and Ernest Perkins, individually, and Roncevert Garrett, a minor by his guardian ad litem, Frank D. Garrett, and Frank D. Garrett, individually, and Jack Justice, a minor by his guardian ad litem, James Justice, and James Justice, individually, Appellees.
[84 Ariz. 77] Conner & Jones, and James M. Murphy, Tucson, for appellants.
Udall & Udall, and Benjamin Lazarow, Thcson, for appellees Garrett and Justice.
Benjamin Lazarow and Hymen D. Goldberg, Tucson, for appellees Perkins.
W. E. PATTERSON, Superior Court Judge.
This is an appeal from three personal injury cases which were consolidated for trial in the Superior Court of Pima County, and which were tried before a jury.
The jury returned verdicts against the defendants, Sidney MacNeil and Helen T. MacNeil, his wife, and Joe Field, in favor of James Perkins, a minor, in the sum of $92,628, Roncevert Garrett, a minor, in the sum of $92,628, and in favor of Jack Justice, a minor, in the sum of $5,000.
Motions for new trial and judgment notwithstanding the verdict in each of the cases, were made and argued before the court. All motions were denied.
Sidney MacNeil and Helen T. MacNeil, his wife, are the owners of certain property comprising 320 acres of patented land, situate near Silver Bell, Arizona. On the land is a mine and mining camp, which has not been in operation since 1949. The MacNeils employed defendant Joe Field as a watchman, who lived on the premises, and was an employee of the MacNeils. The evidence[84 Ariz. 78] showed that the MacNeils had hired Field as a watchman after due inquiry as to his fitness, and his duties were to live on the property and see that nothing was molested or stolen.
In addition to the usual mining equipment such as gallus frame, ore bin, and buildings, there was a small powder magazine in the side of a small hill on the premises, and at the time of the accident, it contained dynamite caps, blasting caps, and electrical detonators, which remained after mining operations ceased in 1949. The explosives were in small cardboard boxes, 100 to a box when full. The magazine was built out of concrete and was covered in front by an iron door approximately 2' X 2' in size. The door had a hasp for a padlock. No lock had even been placed on the door before the accident. At times a wooden stick or a peg was placed into the hasp to keep the door closed. At other times, the door was left ajar so that any person could look into the magazine, put his hand in, or open the door wider. On the day of the accident, the door was open. There were no warning signs on the premises.
On the day of the accident, Roncevert Garrett was 13 years of age, James Perkins was 11 years of age, and Jack Justice was 16 years of age. The boys lived in a trailer court some distance from the mining property.
On the day of the injuries complained of, Perkins and Garrett left their home at the trailer court at about 9 a. m., and they walked up the mountain to the mine within about one and one-half hours. The purpose of the boys' trip was to talk to Mr. Field, the watchman; to look around and get some rocks, and to go hunting with a .22 rifle. When they arrived at the mine, Mr. Field was there but left soon after their arrival. The boys went hunting, and as they crossed the mining property, they noted that the magazine door, where the dynamite caps were stored, was open. When they returned from hunting they passed by the magazine and decided to take a box of the dynamite caps. The Perkins boy reached in and took the caps out of the magazine and handed them to Garrett.
Garrett and Perkins testified that they knew the magazine was there from previous visits, that Field had taken caps out of the magazine about three or four days before the accident, put some of the caps on a rock and shot at them with a .22 rifle. Field told the boys that he would sell some of the caps to them for a nickel apiece.
After the boys had taken the caps, they left the area and saw Field returning, but they did not stop to talk to him. On the way home they shot one cap with a gun. Before returning home for lunch, they put the caps under a tree. Neither Garrett nor Perkins told their parents anything about the caps. After lunch, the boys gathered in a creek with another boy by the [84 Ariz. 79] name of Jack Justice. They took the caps from under the tree, and one of the boys suggested that they shoot them. They shot a few of the caps with a .22 rifle. When the cap was hit, it sounded like a firecracker and raised a little dust. The three boys then put the caps in a cone from a piece of paper, and lit it, but the caps did not explode. Then the caps were placed on a piece of pasteboard, and the boys built up twigs on the board to start a fire. Justice took his cigarette lighter and started to light the twigs and the caps gave a terrific explosion.
The Garrett boy lost his left leg and left arm as a result of the explosion, the Perkins boy was blinded in both eyes, and the Justice boy lost the sight of his left eye. Each boy denied that he had any knowledge as to the great danger of the blasting caps. No one had ever objected to the boys going on the mining property, and the MacNeils had been advised by Field that the boys had been going across the property on their hunting trips. The MacNeils lived at Marana, about twenty miles from the mine and made occasional visits to the property.
Defendants contend that the attractive nuisance doctrine is not applicable to the facts in this case, that the trial court should not have instructed the jury on the doctrine of attractive nuisance, and that the instructions given on attractive nuisance did not properly set out the rule and the elements. They further contend that the trial court should have only instructed the jury on the question of negligence in storage and the ordinary care required.
Defendants assert that the case of Salt River Valley Water Usere' Association v. Compton, 39 Ariz. 491, 8 P.2d 249; on rehearing 40 Ariz. 282, 11 P.2d 839, should govern the facts in this case, and that the case of Buckeye Irrigation Company v. Askren, 45 Ariz. 566, 46 P.2d 1068, has been repudiated by subsequent decisions of this court dealing with attractive nuisance.
The history of attractive nuisance and an analysis of important cases adopting the attractive nuisance doctrine were reviewed in the original Compton case, and the denial of the motion for rehearing. This court determined in that case that the defendant did not in any way contribute to the building of the bird's nest on the electric pole, and the plaintiff could not prevail as he claimbed the pole to see the bird's nest, therefore, the bird's nest was the attraction which was not an artificial creation of the defendant.
Defendants emphasize that the third rule mentioned in the Compton case [40 Ariz.
282, 11 P.2d 842] on rehearing excludes this case from the attractive nuisance doctrine:
'In the third place, unless the child goes on the property by reason of the temptation of the very instrumentality [84 Ariz. 80] which is held to be the attractive nuisance, he cannot recover. (Citing cases).'
In reviewing the cases in jurisdictions which have adopted the attractive nuisance doctrine, it is apparent that the courts have not construed the above rule as have defendants. An examination of the cases cited in the Compton case under the third rule mentioned do not sustain defendants' contention.
In the case of Shaver's Adm'r v. Louisville Gas & Electric Co., 207 Ky. 180, 268 S.W. 1082, 1083 a path was used across defendants' property that went within eight feet of a mine air shaft which had been abandoned. The demurrer interposed by defendant was sustained. The court held:
'There is no allegation in the petition or either of the amendments as to how or why the accident happened, other than those already referred to, which, in substance are that, while using the path, and exercising reasonable care in his own safety, decedent fell into the shaft. This being true, it is manifest that it is wholly immaterial whether or not the air shaft was an attractive nuisance, since that fact, if a fact, had no causal connection whatever with the accident.'
In the case Giannini v. Campodonico, 176 Cal. 548, 169 P. 80, the employee according to plaintiff asked a boy of tender years to work in the stable. The stable door fell on the boy. The court held that the stable could not in any way be considered an attractive nuisance.
In the case of Carr v. Oregon Washington R. R. & Navigation Co., 123 Or. 259, 261 P. 899, 60 A.L.R. 1434, the boy's mother operated the hotel portion of the station house on the railroad company's property. About 350 feet from the station house, on defendant's property was a stack of ties. The boy left the station house to play with another boy, and while playing on the ties, they fell on him, and he was killed. The boy was already on the property before he was attracted to the ties.
None of the above cases hold that the instrumentality called for the application of the attractive nuisance doctrine and consequently are not ...