As I view the decision about to be made it pays scant heed to the long established rule of tort law that "The proximate cause of an event must be held to be that which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred." (Rider v. Syracuse RapidTr. Ry. Co., 171 N.Y. 139, 147.) I cannot bring myself to the conclusion reached by a majority of the court that the act of William Kingsland committed at the defendant's fairgrounds on the night of August 25, 1945 — when he pilfered and took home a bomb — and those subsequent acts by which the bomb reached and injured his younger brother, were a sequence of events which ought to have been foreseen by the defendants in the exercise of the care which the law required of them.
Believing, as I do, that the facts in the present case fit squarely within, and call for the application of, the rule inPerry v. Rochester Lime Co. (219 N.Y. 60), I shall quote presently from this court's opinion in that case which, as I view it, *Page 434 calls for a reversal of the judgment we are now reviewing. Before doing so I refer to testimony given by William Kingsland on the vital point in the present case. After stating that while walking about the bombing area he looked into a partitioned box which stood on end, he testified as follows on direct examination:
"Q. Now, will you tell us in your own words what was down there in the bottom? A. In the bottom was some mortars or pipes or whatever they call them, about ten of them in the bottom there.
"Q. And how many bombs did you see there? A. Well, there was three on the outside bigger ones than the ones I took and there was three in a paper bag or some newspaper on the top.
"Q. Where were those six bombs you now describe? A. Well, they were sitting, the three were sitting on the outside of the paper and there was two or three or four on the inside of the paper.
"Q. And were they on this center shelf or partition? A. Yes, sir.
"Q. They were all in there, were they? A. Yes, sir. * * *
"Q. Now, you say you are not sure whether it was a paper bagor a newspaper that the others were in, is that right. A. Yes,sir.
"Q. But there were some others in some form of paper aroundthem?
"A. Yes, sir. * * *
"Q. Now, you didn't take the larger bombs, did you? A. No, sir." (Emphasis supplied.)
Later, on cross-examination, the same witness revealed the following added details:
"Q. You went over to the boxes, is that it? A. Yes, sir.
"Q. And you saw some papers there then, didn't you? A. Yes, sir.
"Q. And there was nothing visible when you first went overexcept the newspapers, was there? A. Newspapers; there was agrey bag or something like that.
"Q. In other words, all you saw when you got over there wasnewspapers and a grey bag, is that true? A. Yes, sir.
"Q. And it wasn't until you got to opening up the bag and opening up the newspapers that you found anything, wasn't it? A. Well, I seen some bombs out there and then I knew there was some bombs in there. *Page 435
"Q. That was after you opened up the newspaper, wasn't it? A. Well, I was sure I seen the bombs there first.
"Q. You went over and saw a newspaper and the bag, didn'tyou. A. Yes, sir.
"Q. And then you started pawing around the newspaper and thebag, didn't you? A. That was a bag or newspaper.
"Q. And then after you got to pawing around the newspaper orbag, whichever it was, then you discovered the bombs, is thatright? A. Yes, sir." (Emphasis supplied.)
From this undisputed testimony by the boy who, with knowledge of his wrongdoing, extracted the bombs from the newspaper or bag in which they were wrapped, it is clear that the bombs which he removed from the box were not exposed to view but were covered or wrapped and came into his possession only after his admitted well-directed "pawing" in the box.
It will serve no purpose to repeat testimony — accurately stated by Judge CONWAY — which describes the devious course by which the stolen bomb reached the infant plaintiff's home. It is enough to say that between the hour when William Kingsland retrieved the bomb from the hiding place he had chosen for it under the Fairground bleachers, and that hour in the morning of the following day when the bomb became the plaything of his younger brother at his home, new causes — not reasonably to be foreseen by the defendants and not amounting to actionable fault, as I view them — intervened before the bomb did its harm.
From facts adduced by the testimony already quoted, which I regard as decisive, I pass to an excerpt from the opinion written for this court in the Perry case (219 N.Y. 60, supra) — my purpose being to demonstrate by Judge CARDOZO'S recital that the facts which prompted a nonsuit in that case are strikingly similar to those proven in the case at bar. In the Perry case Judge CARDOZO wrote for the court (pp. 62, 63-64): "The defendant stored explosives in a chest on the bank of the Erie canal in the city of Rochester. It stored them in a public place and in violation of law. Two boys carried away some of the boxes, secreted them in a barn, and handling the contents the next day, brought about an explosion. A little boy of eight years who was near them, was killed. The question is whether the defendant may be held to answer for his death. * * * *Page 436
"The defendant stored the explosives without a permit and in violation of an ordinance. It stored them, moreover, in a public place. It thus became a wrongdoer, and answerable as such for theproximate consequences of the wrong. It became answerable, in other words, for those consequences that ought to have been foreseen by a reasonably prudent man (Atchison, T. S.F. Ry.Co. v. Calhoun, 213 U.S. 1, 7; McDowall v. Great WesternRy. Co., L.R. [1903] 2 K.B. 331, 337; Hall v. N.Y. TelephoneCo., 214 N.Y. 49). But we cannot say that what was done with these explosives was something that ought to have been foreseen.The chest, it is true, was open, but the caps were not exposed. A large wooden box hid them. The boys did not play with caps scattered about loosely. They did not play at all. * * * Theystole the caps in quantities that must have carried notice evento boys of their age that the act was wrongful. * * * The defendant had done nothing to invite or provoke this theft. It had not scattered the caps about, or even exposed them to view, so that children might feel tempted, and perhaps licensed, to handle and play with them. It had packed the caps in tins, and then hidden the tins from sight by packing them in wooden boxes. The theft of one of the boxes was no more to be looked for than the theft of the whole chest. It was possible, of course, that the contents would be stolen by boys, or even by adults. But nothing in the situation made that outcome probable. In short, aseries of new and unexpected causes intervened and had tointervene before these explosives could bring death to Perry. Notone of them was within the range of reasonable expectation. Boysdiscovered the hidden caps, stole a box, carried it to their homea half a mile away, and killed a playmate. His death was notthe proximate result of the open chest in the highway." (Emphasis supplied.)
After a careful reading of the record before us I find no facts which make inapplicable the rule of the Perry case (supra). There, as in the case at hand, a defendant was held to be a wrongdoer; but there — as I believe we should hold in the present case — the defendants' wrongdoing was held not to be the proximate cause of injuries which befell the infant plaintiff. *Page 437
On the argument of the appeal herein counsel for the plaintiff-respondents suggested that the rule of the Perry case (supra) is no longer the law of this State. In support of that suggestion three cases in foreign jurisdictions were cited but the following decisions which cite and follow the rule of thePerry case give ample proof that the principle of law there applied still prevails in this jurisdiction (Maloney v.Kaplan, 233 N.Y. 426, 431; Beickert v. G.M. Laboratories,242 N.Y. 168, 174; Morse v. Buffalo Tank Corp., 280 N.Y. 110,118; Babcock v. Fitzpatrick, 221 App. Div. 638, 642;Demjanik v. Kultau, 242 App. Div. 255, 257; Hallenbeck v.Lone Star Cement Corp., 273 App. Div. 327, 332).
Accordingly, I dissent and vote to reverse the judgment and dismiss the complaint.
LOUGHRAN, Ch. J., DESMOND and DYE, JJ., concur with CONWAY, J.; LEWIS, J., dissents in opinion in which FULD, J., concurs.
Judgment affirmed.