Harold Winter and Georgia Winter, b/n/f Harold Winter v. John Unaitis and Marjorie T. Unaitis, 124 Vt. 249

Sylvester, J. This is a civil action for the alleged negligence of the defendants in failing to maintain premises claimed to be under their control in a reasonably safe condition, as result of which the plaintiffs suffered injury. Trial was by jury, resulting in a verdict and judgment for the defendants. The case is here on plaintiffs’ exceptions to the court’s failure to charge as requested, on their exceptions to the charge and on the court’s denial of defendants’ motion for a directed verdict.

We will first direct our attention to defendants’ exception to the court’s denial of their motion for a directed verdict made at the close of all the evidence. If this motion should have been granted, any errors in the charge as given, or failure to charge as requested, to which the plaintiffs have excepted, were harmless. Krulee v. Huyck & Sons, 121 Vt. 299, 302, 156 A.2d 74; Russell v. Pilger, 113 Vt. 537, 544, 37 A.2d 403; LaMountain’s Admx. v. Rutland R.R., 93 Vt. 21, 26, 106 Atl. 517.

Taking the evidence in the light most favorable to the plaintiffs, as it must be in determining whether error was committed in failing to grant defendants’ motion for a directed verdict, the jury could have reasonably found the following facts. The defendants own and operate a farm in the Town of Vernon, Vermont. During the fall of 1960, the defendant, John Unaitis, employed the plaintiff, Harold Winter, to work for him as a farm hand. As a part of Winter’s wage, defendants gave him and his family the use of one of the tenements in a two-tenement house owned by them and located on their farm property.

The remaining tenement in this same house was occupied by one Jesse Moffitt and his family. Moffitt was also employed by the defendants, and was a relative of the plaintiffs. Other tenants and hired help of the defendants had occupied the Winter tenement during the three year period prior to plaintiffs’ occupancy thereof. Attached to the rear of this two-tenement house was an entry-way and a large shed, used by the Winter and the Moffitt families as a passageway to their tenements,' and also for storage of firewood used by them.

This shed was also used as a storage place by the defendants, and served as a play area'for' plaintiff’s children, the Moffitt children and those of the defendants. Within this common shed area was stored a stove, two used refrigerators, a nail keg containing nails, staples, bolts, mowing machine fingers, and' about the area was a scythe and other small farm items, some belonging to the defendants.

Sometime during the spring of 1962, while the plaintiff’s, Moffitts’ and déféndants’ children were playing in this shed in question, Philip Unaitis, a 16-year old son of' the defendants, found several small, cylindrical objects on a shelf inside the door of the shed. Upon discovering that these objects made good whistles, Philip distributed them to his' playmates, one of which came into the possession of the plaintiff Georgia Winter, 11 years old. Georgia retained this object in her handbag for approximately a month, using it occasionally as a whistle.

On May 21, 1962, while attending school, and while sitting in her classroom, Georgia rémoved the small, cylindrical object from her pocketbook and undertook to pick it with a small safety pin. The outcome of this investigative curiosity on the part of Georgia resulted in á loud explosion, the loss of an eye, two fingers, a part of a third finger, and permanent scars about the head, face and arms. This cylindrical object was an explosive commonly known as a blasting cap.

Defendants’ motion for a directed verdict was, in substance, that plaintiffs had failed to introduce any evidence of actionable negligence on .part of the defendants in the care and maintenance of the premises in question; that the plaintiffs had failed to establish that any negligence of the defendants was the proximate cause of the plaintiffs’ injuries; that the plaintiffs had failed to prove that the defendants knew, or ought to have known, in the exercise of reasonable care, of the existence of the blasting caps in the area in question, and that the plaintiffs were guilty of contributory negligence as a matter of law.

We will first take up that portion of the motion having to do with defendants’ negligence. In cóiisidering this ground of the motion, we must, as has been repeatedly held, take the evidence in the light most favorable to the plaintiffs. The tendency of the evidence and not its weight, is to be considered; the question is not merely whether there is any evidence to this effect, but whether it is of such a quality and character as to justify a jury, acting reasonably, to predicate a verdict thereon in favor of the party having the burden of proof. Peterson v. Post, 119 Vt. 445, 451, 128 A.2d 668.

Evidence which merely makes it possible for the fact in issue to be as alleged, or which raises a mere conjecture, surmise or suspicion, is an insufficient foundation for a verdict. Lewis v. Vermont Gas Corp., 121 Vt. 168, 179, 151 A.2d 297; Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 399, 177 A. 631. The form of expression used in some of our cases is that there must be substantial- evidence fairly and reasonably tending to support the plaintiffs’ claim to make a case for the jury. Lewis v. Vermont Gas Corp., supra, and cases there cited.

The plaintiffs recognize and set forth in their brief that to recover they must sustain their proof on three elements, as they refer to them, i.e., 1) That the defendants had retained control of the shed in question so as to impose upon the defendants the duty of maintaining this shed in a reasonably safe condition; 2) That the defendants in the exercise of their control of this shed were negligent in the manner in which they exercised this control; 3) That such negligence on the part of the defendants constituted a proximate cause of the injuries suffered by the plaintiff Georgia.

Plaintiffs’ brief is devoted mostly to argument and citations having to do with element number 1, concerning control of the shed in question, to the charge of the court as given and to the court’s refusal to charge their many requests. Little is said of the claimed negligence on part of the defendants.

We conclude, however, from plaintiffs’ oral argument and from their brief that the negligence upon which they seek to charge the defendants was the storage in the shed in question, of a stove, two refrigerators, a nail keg containing nails, staples, bolts and similar items, including a scythe, the failure to remove these items upon request to do so by Mrs. Winter, and failure to exercise the necessary care and diligence to have discovered the cylindrical objects, if found to be on the premises, and to have removed them therefrom.

We have made a careful examination of the record and find no evidence, and none has been pointed out to us, indicating when the explosive caps first appeared in the shed, who may have placed them there, how long they had remained in the shed when found by the boy Philip, or any evidence that the caps were ever in the possession of the defendants or that the defendants knew anything of an explosive nature was about the shed. True, Mrs.

Winter requested the defendant John- Unaitis to move the stove and refrigerators, and especially the refrigerators, because of the children, and other things because they were no good, were in the way, and their removal would afford more room for the storage of firewood. There is no direct evidence or evidence from which it can be inferred that the reason she requested the defendant John to remove the stove, refrigerators and other things was because any of the articles were imminently dangerous to life or because of the explosive, dangerous character of the articles.

Again, there is no evidence, even by inference, that the situation of the shed at any time, was such as to suggest an investigation or inspection of it and its content, or that a peril had been created by the storage of explosives. In Humphrey v. Twin State Gas & Elect. Co., 100 Vt. 414, 422, 139 Atl. 440, 444, 56 A.L.R. 1011, the opinion states: “The existence of actionable negligence depends, not upon what happened, but upon what reasonably might have been expected to happen.

Unless it be shown that a prudent man, situated as the defendant was at the time of his alleged default, knowing what he knew or should have known, would have regarded injury to the plaintiff or one of the class to which he belonged, as likely to result from the act or omission complained of, actionable negligence is not made out.” Actionable negligence is made out only when it appears that a prudent person, in like circumstance, would have thought that injury would be likely to result from his acts or omissions. Johnson v. Cone, et al, 112 Vt. 459, 462, 28 A.2d 384. See Hannon v.

Myrick, 118 Vt. 428, 432, 111 A.2d 729, and cases cited therein. Plaintiffs in their supplemental brief, rely heavily on the case of McGettigan, et al v. National Bank of Washington, et al, 320 F.2d 703 (1963), a District of Columbia Circuit Court case. The factual situation in this case, however, is entirely different from that in the case before us. In that case the defendants were responsible for the care of a building that had been allowed to seriously deteriorate. Doors had disappeared, windows were out and the glass broken.

The structure was open to the elements, and was a hangout for persons of questionable occupations and habits. The interior was cluttered with debris and the roof was insecure.. The structure was used at times as a sort of a club house for young thieves, who engaged in the practice of stealing flares from various sources, including railroad cars and telephone trucks, and using - them for their amusement near the premises. The place was the subject of complaints by neighbors. The place was inspected weekly by the defendants’ agent; these inspections disclosed an accumulation of debris.

A policeman on several occasions advised the agent of the defendant of the decrepit condition of the premises, the accumulation of junk and the presence of vagrants. The agent agreed to correct the situation, but nothing was done; no effort was made to close the structure, remove the debris, or restrict its use by children, delinquents and vagrants.

The Circuit Court held that whether defendants, as owner or occupier of these premises negligently permitted unreasonable risk of harm towards minor plaintiff, a child of the neighborhood, in allowing to be deposited by third, persons, in run down building, used at times for a club house by young thieves, flammable flares, and whether any such negligence proximately caused plaintiff’s injuries were questions for a jury.

It is at once apparent that these circumstances, both as to the conditions of the building and the matter of notice to, and knowledge of, on part of the defendants, as to existing conditions, is wholly different from the case under consideration. There, the defendants were informed about, and knew of the hazardous' conditions • of the building, and were requested to remedy the situation. Here, as we have seen, there was no evidence that defendants knew, should have known, or could have known that there was anything about the premises likely to cause injury to the plaintiff Georgia.

Without evidence of knowledge on part of the defendants of the explosives in.the shed, or reason for them to believe that such were.there, we do not believe it can be said that defendants could reasonably anticipate-the injury suffered by plaintiff Georgia under the circumstances revealed by the evidence. For necessity of knowledge .to'impose liability see 38 Am. Jur. Negligence §23, 24; 65. C.J.S.

Negligence §5. : -Applying the rules set forth herein to the evidence that we have mentioned, it is clearly apparent that there was not substantial evidence upon which a jury acting reasonably could find the defendants negligent as claimed by the plaintiffs. Defendants’ motions for directed verdicts should have been granted.

Since the verdicts of the: jury.are the same as those that should have been granted in favor of the defendants, they will not be disturbed. ■As we have pointed out, this disposition of the case makes it unnecessary to consider and pass upon plaintiffs’ exceptions to the court instructions and their exceptions to the refusal of the court to charge as requested. Entry of Judgment on the jury’s verdict for the defendants was without error. Judgment affirmed.