dissenting: The defendant is a corporation engaged in mining marl for fertilizer purposes. On 15 February, 1915, the plaintiff, a child at that time seven years of age, entered a small house, near the mines, in which defendant kept some dynamite caps stored for blasting 'purposes, and took some of them and carried them home with him. In handling them over a fire one exploded and injured his thumb and forefinger on his left hand so that they were amputated. The sight in one eye has been seriously and permanently impaired. The jury awarded damages in the sum of $7,000.
I think my brother Allen has demonstrated in a learned and interesting opinion the right of the plaintiff to sue in the courts of this State, but I am of opinion that upon all the evidence he is not entitled to recover.
The ground upon which a recovery is based is that defendant kept dynamite in a place easily accessible to children and where they were likely to be attracted by it.
I do not think the facts justify such conclusion. The plaintiff’s evidence discloses that the dynamite caps were stored in a house prepared for the purpose and accessible to the mining operations. They were not scattered on the floor, but were contained in a tin box on a high shelf and beyond the reach of a child on the floor. There is no evidence that any children had been seen playing around the little house or that defendant knew that any had ever been there. There is evidence that children sometimes played around the mine. The plaintiff says he had never been to the house before. On the day he was hurt he was alone and took the footpath leading to the house and finding the door ajar went in. He climbed up on something so as to reach the upper shelf and took several of the dynamite caps out of the box and carried them off with him. There is no evidence that any child had ever been at the house or ever entered it before. The door had proper fastenings on it and there is no evidence that it was habitually left open. The fact that it was left open on this one occasion (by some workman probably) is insufficient in my judgment to charge the defendant with actionable negligence.
No child had ever been attracted to this house before, not even the plaintiff, .and there was nothing going on there which would attract children and bring the case within the principle of the turntable or attractive nuisance cases. The caps were not left strewn around the house or on the floor or placed where children would be likely to get them. In order to get these caps plaintiff had to enter the door, climb up on something so as to reach a high shelf and then take them out of a tin box.
The’plaintiff was a trespasser, and if he was sui juris, he may have been guilty of theft.
*445I have examined carefully many cases in which this subject has been considered, notably Briscoe v. Power Co., 148 N. C., 396, and Barnett v. Mills, 167 N. C., 576, where most of the authorities are collected and reviewed, and I fail to find any case where liability has been adjudged upon a state of facts at all similar to these.
Those in which liability has been predicated are apparently founded upon an application of the principle laid down by Lord Denman in the old case of Lynch v. Nurdin, 1 Q. B., 29, quoted by Lord MacNaghten in Cooke v. R. R., Appeal Cases (1909), 234 (a turntable case), as follows :
“If,” says Lord Denman, “I am guilty of negligence in leaving, anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third party, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.”
The principle of liability is very fairly and clearly stated in Mattson v. R. R., 95 Minn., 477, 70 L. R. A., 503, as follows:
“The rule governing cases of this kind, stated in substance, is that one who maintains dangerous instrumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement, is liable to a child non suit juris who is injured therefrom, even though a trespasser. The rule is intended for the protection of children of tender years who, from immaturity are incapable of exercising a proper degree of' care for their own protection.”
This principle is applied in Barnett v. Mills, supra. In that case a boy eleven years old got a dynamite cap which had been carelessly left unguarded by the defendant in front of the postoffi.ce in the town of Oliffside, where' children were accustomed to play and were playing, and was injured by the explosion. Defendant was held liable. The opinion refers to the case of Chambers v. Coal and Railway Co., 30 So., 170, with apparent approval. In the Chambers case the powder house was alleged to be negligently located, but was, in fact, 150 yards from the road and near a path seldom traveled, which is very similar to the case here, and defendant was held not to be liable.
The case of Nicolosi v. Clark, 1915 F (L. R. A.), 638, is an instructive one and very much in point. In that case the defendant was a street contractor and in the conduct of his work in excavating a sewer in one of the streets, open to the public, he kept a box used for storing tools and implements. This box was standing within three feet of the sidewalk. There was kept in that box a small box containing dynamite *446caps. Plaintiff, a small boy of ten years of age, passing along the street, saw the open box, and being prompted by childish curiosity, approached the box and took from the small box a dynamite cap, and, while handling it it exploded and injured him. A demurrer to the action was sustained, and the Court said, on page 640:
“In the case at bar the plaintiff was clearly guilty of trespass, if not of peculation. If a boy of ten years of age is not chargeable with knowledge that he has no right to make free with the contents of a box placed such as this, manifestly a box belonging to other people and containing their goods, it can only be because that particular boy is of deficient intellect and understanding. But this is not alleged. Not being alleged, we hold it plain, as a proposition of law, that he was guilty of an unwarranted trespass, barring his right of recovery.”
In Fanning v. White, 148 N. C., 541, this Court held that “To store dynamite being used for the legitimate purposes necessary for the construction of a railroad on its right of way, in a shanty with the door open and the window torn out, affording any person ample opportunity to see the danger, with the warning written or printed on the boxes, cannot violate any duty owing to a person going upon the premises without a license, either express or implied.”
I will cite only a few of the many .cases on the subject which I think support my views: Furnace Co. v. Patterson, 48 S. E., 166; Travell v. Bannerman, 174 N. C., 47; O’Connor v. Bruckes (Ga.), 43 S. E., 731; Etheridge v. R. R. (Ga.), 50 S. E., 1003; Afflick v. Bates, 79 Am. St., 801; Hughes v. R. R. (N. H.), 93, Am. St., 518.
In this last case the child was nine years of age and his recovery was denied upon the ground that he was a trespasser. Slayton v. Fremont, E. & M. Valley R. R., 59 N. B., 510; Carter v. C. & O. G. R. R., 19 S. C., 20, 45 Am. St. Rep., 145; Ball v. Middlesborough Town & Dands Co. (Ky.), 68 S. W., 6; Perry v. Rochester Lime Co. (N. Y.), 133 N. E., 529; Horan v. Watertown, 217 Mass., 184; Nicolosi v. Clark (Cal.), L. R. A., 1915, 638; Finbeine v. Solomon, 24 L. R. A. (N. S.), 1275.
It appears to me that the evidence in this case is lacking the most essential elements necessary to constitute liability. The element of allurement is lacking, for the mine was shut down and work had stopped. There was nothing apparent in the house calculated to entice the plaintiff to leave the path and go into it unless he went in to pilfer and to take what any boy seven years old of ordinary sense and morality must have known he had no right to take. He did not know that there was dynamite in there, for that was shut up in a tin box on an upper shelf and beyond his observation and reach from the floor.
*447The element of probability (or, as Lord Denman puts it, “extreme ■probability”) is entirely wanting. No Human foresight could be expected to anticipate that a normal seven-year-old boy would leave tbe path, go into the house, climb up to an upper shelf, and purloin dynamite caps out of a tin box and carry them off with him, for there is not a scintilla of evidence that a child had ever before entered the Rouse or been seen about its door.
With the utmost deference for the opinion of my brethren, I am convinced that their judgment in this case imposes a liability beyond any ■ever pronounced by a Court before in this character of case, and that it inflicts a penalty upon this defendant unwarranted by law or justice.