On Motion for Rehearing
Appellees, in their motion for rehearing, argue that we found them negligent in not warning appellants that in hot weather the phosphorus would melt and run. They urge this as error because there was no pleading of negligence for failure to warn and no jury finding to this effect.
There is a part of one sentence of our opinion which might give such impression. The sentence reads:
“Or, if it, in the form in which it was applied, might melt and run, it *339was West’s duty to apply it in a manner to protect against the consequences of its running or warn- the Cottiers of this characteristic zvhich might make it accessible to the children, so they could protect against such.”
The italicized part of the sentence is the part which is susceptible to the construction placed on it by the appellees. However, it was not our intention to sustain the jury’s finding of negligence in the manner in which the phosphorus was applied on the ground there was a failure to warn. There was no pleading of such and no jury finding. What we actually hold is that a jury issue was raised concerning whether the phosphorus paste was negligently applied. The jury so found and there was sufficient evidence to support this finding. We hold that since there is evidence showing that it was applied in a manner so it melted and ran to a point where it was accessible to children, there was evidence to go to the jury on the issue as to whether the phosphorus was negligently applied.
The evidence is sufficient to support the finding. While Mr. West testified he applied it in such a manner it would not run, the Colliers testified that in fact it did run down the studs and to a point on the studs under the shelf where it was accessible to the child. This conflict in testimony was a matter to be resolved by the jury.
The balance of our opinion discussing failure to warn was directed to the question of whether the Colliers, not having been warned, were guilty, under all the evidence, of contributory negligence. We held, and hold, there was no evidence to support a finding of contributory negligence.
Appellees urge that we presumed the child obtained the phosphorus from the studs in the garage. We make no such presumption. What we do say is that the evidence, though circumstantial, presents a factual situation of probability that this was the source of the poison which resulted in the child’s death. The jury issues were submitted very generally. The jury was asked if the appellees were guilty of negligence in the manner in which the phosphorus was applied and if this negligence was a proximate cause of the child’s death. Under such submission the jury could have concluded that the negligence consisted in applying it to the studs in a manner so it would run and become accessible. We think the probability is that such was the jury’s conclusion. Too, the jury could have concluded that it was from the studs under the shelf in the garage that the child got the poison. The evidence circumstantially, but with probability, points to this as the source, because other points of-application were relatively inaccessible. Too, an inspection of the other points of application shows the form and pattern in which they were applied remained undisturbed. It is true, as pointed out by ap-pellees, that Mrs. Collier, the child’s mother, stated she inspected the studs in the garage after the child’s death and did not see any evidence of a scraping of the phosphorus on the studs or any fingerprints. We attach no real significance to this because the evidence showed the phosphorus paste to be pliable and that it had run, where applied on the studs, in the heat of the month of June. Marks could well have originally been on the paste located on the studs, but additional running of the paste or expansion caused by the heat could well have obliterated the marks between the time of their making» and the time of inspection. At least, the jury could well have reasoned in the light of all the testimony.
The statement in appellants’ brief to the effect that no one knew where the child got the poison is no judicial admission. No one does know with absolute certainty where the poison was obtained, but it suffices legally if the evidence establishes the probability as to where it was obtained.
Appellees’ motion for rehearing is overruled.