Nicolosi v. Clark

HENSHAW, J.

The complaint charged that the defendant was a street contractor, and in pursuance of his business was engaged under a contract with the city of Sacramento in excavating a sewer trench in one of the streets of that city; that during the progress of this work the roadbed and sidewalks were open to the traveling public; that in the prosecution of his work defendant kept upon this street a large box used for storing tools and implements; that this box was standing within three feet of the sidewalk; that there was kept in this large box a small box containing dynamite caps; that plaintiff, passing along the street, saw the large box

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and “being a child of tender years, to wit, of the age of ten years, and being attracted by the said open box, and being prompted by childish curiosity, said plaintiff approached the said open box and took therefrom the said small box containing said dynamite caps, and said plaintiff being wholly ignorant of the dangerous character and composition of said dynamite caps and without fault or negligence on his part, took from the small box one of the said dynamite caps and while handling the same the said dynamite cap exploded with great force and violence; and by the explosion greatly bruised, maimed and injured plaintiff.” To this complaint a general demurrer was interposed and sustained. From the judgment which followed plaintiff appeals.

The mere fact that plaintiff in such an action as this is of tender years does not require that the alleged cause of action be submitted to the jury to determine whether or not the plaintiff, through negligence or other cause, was himself so in fault as to destroy his right of action. Where the facts, as here, are set forth in the complaint, the question is one of law. If the complaint clearly establishes plaintiff’s negligence in point of law the demurrer was properly sustained. If the complaint does not do this, or even if it be reasonably debatable whether it does so or not, the question is one for the jury.

(Nagle v. California Southern R. R. Co.,

88 Cal. 86, [25 Pac. 1106] ;