
    No. 552
    HERRING MOTOR CAR CO. v. STAAS
    No. 19062.
    Supreme Court
    On motion to certify. Dock.
    April 8, 1925;
    3 Abs. 249.
    355. DAMAGES—Would throwing of lighted match into gasoline tank, after motor truck has been permitted to remain standing, be such intervening cause as to exempt owner from liability?
    Attorneys—C. H. Henkel; Mansfield, & Jackson, Lima, for Motor Car Co. Roby
   Ozro Staas brought his action in the Allen Common Pleas by his next friend, Wilson Staas, against the Herring Motor Co. for damages; by reason of injuries sustained when a gasoline tank in a truck alleged to have been owned by the Motor Co. exploded. It seems that Ozro in company with two other youngsters, ranging from 12 to 14 years of age went to the truck in question. The Staas boy, it was claimed, was on the running board and the other two were in the seat. One of them lit a cigarette and threw the match into the tank and immediately jumped from the seat. Immediately there was an explosiion, the end of the' tank being forcibly thrown against young Staas, whereby he was injured.

Staas in his petition alleged that the Motor Co. allowed a motor truck to remain in an alley, in Lima, unguarded and without any protection whatsoever, abandoned and unused and without any warning or advice as to the condition and contents of the truck and tank, and with the tank filled or partially filled with gasoline, for an unreasonable length of time. The theory of Staas’ case was-that the Motor Co. had unlawfully used a portion of a public alley by allowing the truck to stand therein for an unreasonable length of time in violation of 13421 GC. Judgment in the Common Pleas was rendered in favor of Staas.

Error was prosecuted and the Company contended; that the trial court erred in not directing a verdict in its favor, for Staas introduced no evidence tending to show that the truck was placed in the alley by the Motor Co.; that there was no evidence tending to show knowledge or notice of any kind whatsoever to the company. Company contended that even if it did place the truck in the alley, permitting it to remain, that was not-the direct and proximate cause of the injury, for there was an intervening act, mischeviously and maliciously caused by one of the boys which was the controlling cause of the injury and without which Staas could not have been injured. The Court of Apeeals affirmed the judgment of the Common Pleas. The Motor Car Co. brings the cause to the Supreme Court and maintains:

1. The malicious throwing of the lighted match into the gasoline tank was such an intervening cause as exempted it from liability.

2. The charge of the court was prejudicial to rights of Motor Car Co. It erred in defining negligence and it should have instructed the jury as to proximate and intervening cause.

3. Motor Car Co. owed Staas no duty except to refrain from wantonly and wilfully injuring him and to exercise ordinary care after discovering him to be in peril. This rule is not altered by the fact that injured person is child of tender years.  