#### ANDREW KRACHANAKE, Jr. by his next friend, ANDREW KRACHANAKE, v. ACME MANUFACTURING COMPANY.

(Filed 24 April, 1918.)

1. War — Citizens—Residents—Aliens—Enemy—Actions—Courts.

Tine right of one whose country is at war with the United States to sue in our State courts depends rather upon the place and character of his-residence rather than upon his citizenship, and under the common law and the definition of his status as given by the declaration of war against Austria-Hungary by the President, and the “Trading with the Enemy Act,” a citizen of that country residing here when the war was declared and since then may thereafter maintain his action in our courts, there being nothing to show he has done any unfriendly act or made any unfriendly utterance.

2. Same — Infants—Citizens—Residents—Next Friend.

A father bringing suit in our courts as the next friend of his seven-year-old child is not a party thereto in a legal sense; and when the parent of the child is an alien enemy, or a citizen of a country at war with the United States, and residing here, the citizenship of . the child will be presumed to be that of the country of his birth, and the father may maintain the action in our courts as such next friend; and in case of recovery a guardian may he appointed and its use controlled in such manner as not to strengthen the hands of the enemy. S&rnble, the congressional registration act of alien enemies does not include those under 14 years of age.

*4363. Negligence — Evidence—Explosives—Children—Infants—Trials—Nonsuit.

Evidence in this case that defendant used blasting-caps and explosives in its business, kept in an unenclosed and open and readily accessible house, exposed to view on a short pathway leading from a public road and near a village of from 100 to 150 people, and around which children were known, to play, and that one them, a lad of seven years, entered the open door of the unguarded house, took several of the caps from an open ease without knowing of their nature or dangerous character, which exploded in his hand while he was exposing them to a fire at his home and injured him, is sufficient upon the issue of defendant’s actionable negligence. Barnett v. Cotton Mills, 167 N. C., 580, cited an applied.

Brown, J., dissenting; Walker, X, concurring in the dissenting opinion.

Appeal by defendant from Devin, J., at tbe December Term, 1917, of New HaNovek.

This is an action to recover damages for personal injury caused, as alleged, by tbe negligence of tbe defendant. Tbe action is brought by Andrew Krachanake, Jr., a minor ten years of age, by his father, Andrew Krachanake, Sr., as bis next friend.

Tbe father is a native of Austria-Hungary. He left that country with bis family fifteen years ago and has lived since then two years in Ohio, eight years in Canada, and five years in this State.

This country declared war against Austria-Hungary after tbe verdict was returned in tbe action, but before tbe judgment was signed.

Tbe defendant contends that tbe action cannot be maintained because tbe plaintiffs are alien enemies. This objection was overruled and the defendant excepted.

Tbe negligence alleged is in permitting dynamite caps or cartridges to be kept in unlocked boxes in an open bouse near a highway and easy of access to children and other people.

There was evidence tending to prove that tbe plaintiff, Andrew Krack-anake, Jr., entered tbe bouse and took tbe caps therefrom and carried them to bis home, and while standing before tbe fire with one of tbe caps in bis band, tbe cap exploded and caused tbe loss of two of bis fingers and serious injury to one of bis eyes.

Tbe other facts necessary to an understanding of tbe case will appear in tbe opinion.

There was a motion for judgment of nonsuit, which was overruled, and tbe defendant excepted.

Tbe jury returned a verdict in favor of tbe plaintiff, and from tbe • judgment rendered thereon tbe defendant appealed.

W. F. Jones and F. K. Bryan for plaintiff.

J. G. McGormiclc and Rountree & Davis for defendant.

*437AlleN, J".

Tbe first question presented by tbe appeal is as to tbe right of tbe plaintiff, a native of Austria-Hungary and resident in tbis State, to maintain an action in our courts as next friend to recover damages for personal injury to bis infant son.

Tbe plaintiff left Austria-Hungary fifteen years ago, and since then bas lived two years in Obio, eight years in Canada, and five years in tbis State.

There is neither allegation nor evidence that be bas been guilty of any act or utterance unfriendly to tbe United States, and so far as tbe record discloses be is a quiet law-abiding laborer. He comes, however, within tbe classification of an alien enemy, because tbe country to which be owes allegiance is at war with tbe United States, and conceding that bis son, who was seven years old at tbe time of bis injury, stands in tbe same relation to tbis government as bis father, which does not seem to be tbe American rule (12 Mod. Am. L., 143; case of Carl Gundlich, 12 Mod. Am. L., 698), can tbe action be maintained?

Tbe question is new in tbis Court, but it bas been considered so frequently and with such unanimity of opinion in England and America, and tbe conclusion reached bas been so clearly recognized by tbe President in bis proclamation after the declaration of war against Germany and Austria-Hungary, and by Congress in tbe “Trading with tbe Enemy Act,” that but little is left for us to do except to give tbe result of our investigations.

Tbe statement is often made by tbe law writers that an alien enemy cannot sue, and upon tbe ground that to permit a recovery would strengthen and add to tbe resources of tbe hostile government, and correspondingly weaken our government, but when reference is bad to tbe facts, it is found that the principle is predicated upon residence in tbe country at war with ours, and that it bas no application to tbe alien enemy resident here, who may be. interned and held as a prisoner of war without tbe right to apply for tbe writ of habeas corpus, and whose property may be taken into custody by tbe Government. See note to Daimler Co. v. Continental Tire Co., Anno. Cases, 1917 C, 193, where tbe authorities are collected.

Tbe test, therefore, of tbe right to sue, which bas been universally adopted, is residence and not nationality, where tbe alien enemy is and not what be is.

• Tbis was substantially declared in 1697 in Wells v. Williams, 1 Lord Raym, 282, and was approved in 1813 in an opinion by Chancellor Kent in Clarke v. Morey, 10 Johns., 70, and in 1915 in an opinion by Lord Reading, Chief Justice of England, in Porter v. Freudenberg (1 K. B., 857), Anno. Cases, 1917 C, 215.

*438Tbe learning upon tbe question will be found in these two opinions, and in an interesting article in tbe Yale Law Journal of December, 1917, written by Mr. Picciotto of tbe Inner Temple, London, and in the notes to Daimler Co. v. Continental Tire Co., Anno. Cases, 1917 C, 193.

In Clarke v. Morey, tbe plaintiff, a resident of New York, was a subject of Great Britain; war then existed between that country and tbe United States, and it was objected that tbe plaintiff could not prosecute bis action in tbe courts of tbe State of New York, which is the case presented by this record.

Chancellor Kent said in answer to tbe objection: “Tbe disability (to sue) is confined to these two cases: (1) Where tbe right sued for was acquired in actual hostility, as was tbe case of tbe ransom bill in Anthon v. Fisher, Doug., 649, note; (2) Where tbe plaintiff, being an alien enemy, was resident in tbe enemy’s country, such was tbe form of tbe plea in George v. Powell (Fortesc., 221), and in Le Bret v. Papillon (4 East, 502) ; and such was tbe case with tbe persons in whose behalf and for whose benefit tbe suit was brought upon tbe policy, in Brandon v. Nesbitt (6 Term Rep., 23).

“It was considered in tbe Common Pleas at Westminster as a settled point (Heath, J., and Rooke, J., in Sparenburgh v. Bannatyne, 1 Bos. & Pull., 163) that an alien enemy under King’s protection, even if be were a prisoner of war, might sue and be sued. This point bad long before received a very solemn decision in tbe case of Wells v. Williams (1 Lord Raym., 282; 1 Lutw., 34; S. C., 1 Salk., 46). It was there decided that if tbe plaintiff came to England before tbe war, and continued to reside there by tbe license and under tbe protection of tbe King, be might maintain an action upon bis personal contract; and that if even be came to England after tbe breaking out of tbe war and continued there under tbe same protection, be might sue upon bis bond or contract; and that tbe distinction was between such an alien enemy and one commorant in bis own country. Tbe plea, in that case, averred that tbe plaintiff was not only bom in France, under tbe allegiance of tbe French King, then being an enemy, but that be came to England without any safe conduct, and tbe plea was held bad on demurrer. It was considered that if tbe plaintiff came to England in time of peace and remained there quietly, it amounted to a license, and that if be came in time of war and continued without disturbance, a license would be intended. ... In tbe case before us, we are to take it for granted (for tbe suit was commenced before tbe present war) that tbe plaintiff came to reside here before tbe war, and no letters of safe conduct were, therefore requisite, nor any license from tbe President. Tbe license is implied by law and tbe usage of nations; if be came here since tbe war, a license is also implied, and tbe protection continues until tbe executive *439shall think proper to order the plaintiff out of the United States; but no such order is stated or averred. . . . Until such order, the law grants permission to the alien to remain, though his sovereign be at war with us. A lawful residence implies protection, and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity.

> “The right to sue in such a case rests on still broader ground than that of a mere municipal provision, for it has been frequently held that the law of nations is part of the common law. By the law of nations, an alien who comes to reside in a foreign country, is entitled, so long as he conducts himself peaceably, to continue to reside there, under the public protection; and it requires the express will of the sovereign power to order him away. . . . We all recollect the enlightened and humane provision of Magna Oharta (c. 30) on this subject, and in France the ordinance of Charles Y., as early as 1310, was dictated with the same magnanimity; for it declared that in case of war, foreign merchants had nothing to fear, for they might depart freely with their effects, and if they happened to die in France their goods should descend to their heirs. (Henault’s Abrégé Ohron., tom. 1, 338). So all the judges of England resolved, as early as the time of Henry YIII., that if an alien came to England before the declaration of war, neither his person nor his effects should be seized in consequence of it. (Bro., tit. Property, pi. 38, Jenk. Cent., 201, case 22.) And it has now become the sense and practice of nations, and may be regarded as the public law of Europe (the anomalous and awful case of the present violent power on the Continent excepted) that the subjects of the enemy (without confining the rule to merchants), so long as they are permitted to remain in the country, are to be protected in their persons and property, and to be allowed to sue as well as to be sued.”

Lord Beading, discussing the same question, says: “It is clear law that the test for this purpose is not nationality but the place of carrying on the business,” and Mr. Picciotto: “In the Anglo-American system of law the test is now well settled; it is a test not of nationality but of- residence or commercial domicile, not what a man is but where his business is.”

Mr. Picciotto also refers to Schaffenius v. Goldberg, 1 K. B., 284, decided in 1916, and- affirmed on appeal, in which it was held that an interned alien enemy could sue in the courts of England, Younger, J., saying: “There has been a gradual and progressive modification in the rules of the old law in their restraint and discouragement of aliens. It is, as I have already indicated, not the nationality, but the residence and business domicile of the plaintiff that are now all important.”

After the declaration of war against Austria-Hungary, the President *440issued bis Proclamation No. 1417, similar to one issued after war was declared against Germany, in wbicb after quoting tbe resolution declaring war and stating that he was acting under and by virtue of authority vested in him by the Constitution of the United States and sections 4067 et seq., United States Revised Statutes, he declared as follows:

> “I do hereby further proclaim and direct that the conduct to be observed on the part of the United States towards all natives, citizens, denizens, or subjects of Austria, being males of the age of fourteen years and upwards, who shall be within the United States and not actually naturalized, shall be as follows:

> “All natives, citizens, denizens, or subjects of Austria-Hungary being males of fourteen years and upwards who shall be within the United States and not actually naturalized are enjoined to preserve the peace towards the United States and to refrain from crime against the public safety, and from violating the laws of the United States and of the States and Territories thereof, and to refrain from actual hostility or giving information, aid or comfort to the enemies of the United States, and to comply strictly with the regulations which are hereby, or which may be from time to time promulgated by the President, and so long as they shall conduct themselves in accordance with law, they shall he undisturbed in the peaceful pursuit of their lives and occupations and he accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may he necessary for their own protection and for the safety of the United States; and towards such persons as conduct themselves in accordance with law, all citizens of the United States are enjoined to preserve the peace and to treat them with all such friendliness as may he compatible with loyalty and allegiance to the United States." (Italics ours.)

One of the important acts of Congress growing out of the present war is what is known as “Trading with the Enemy Act,” and it is therein provided that “The wojd ‘enemy’ as used herein shall be deemed to mean for the purpose of such trading and of this act: (a) Any individual, partnership, or other body of individuals of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war, or resident outside the United States and doing business within such territory,” etc., thereby clearly recognizing residence or doing business in hostile territory as the test of an alien enemy for the purpose of trading.

It appears, therefore, that under the common law, and in accordance with the spirit and declared purpose of the President in his proclamation, and by Congressional interpretation, the father, against whom nothing is urged except that he was born in Hungary, if the real plaintiff, would be entitled to maintain the action.

*441The father is not, however, a party in the legal sense. He is an officer appointed by the court to protect the interest of his son, who is the real plaintiff (Hockoday v. Lawrence, 156 N. C., 322), and the son is ten years of age and was born in Canada, a province of Great Britain, with which we are in alliance, and while most of-the European countries have adopted the rule that nationality follows parentage, “The United 'States and Great Britain follow the older territorial rule according to which nationality is primarily determined by the place of birth.” 12 Mod. Am. L., 143.

In United States v. Wong Kim Ark, 169 U. S., 649, it was held that a Chinaman born in the United States of parents who were the subjects -of the Emperor of China was an American citizen, and the Court says of the English rule, “The fundamental principle of the common law with regard to English nationality was birth within the allegiance.”

In 1907 Carl Gundlieh applied to Mr. Tower, Ambassador to Germany, for a passport for his minor son, upon the ground that he was an American citizen.

It appeared that the father and his wife came to the United States in 1886, and remained here one year and a half, during which time the son was born, that the family returned to Germany in 1887, no one of them being naturalized, and had lived there since then, with no intention of returning to this country, and owning no property here.

The matter was referred to the acting Secretary of State, Mr. Bacon, who ruled that the son was a citizen of the United States, with the right to elect his nationality upon becoming twenty-one years of age. 12 Mod. Am. L., 698.

Again the proclamations of the President and the rules and regulations of the Attorney General under the act of Congress requiring alien ■enemies to register do not seem to include those under fourteen years of age, nor do the reasons which prevent alien enemies under certain conditions from resorting to our courts prevail in the case of the son, as the money received will be in charge of a guardian appointed by our ■courts, and cannot be removed from the State without the consent of the court, so that the danger of its being used to 'strengthen the hands ■of the enemy is entirely removed.

"We have no doubt that the action can be maintained.

The second question relied on by the defendant is whether there was sufficient evidence of negligence to be submitted to the jury.

The evidence construing it most favorably for the plaintiff, which is the rule on motions for judgment of nonsuit, tends to prove the following facts:

1. That the defendant was engaged in the manufacture and. sale of fertilizer in the town of Acme, North Carolina, and in its business it *442mined marl witbin tbe corporate limits for use in its fertilizers; that this mine was located about one-fourth of a mile from the railroad station; that within a radius of two blocks of the mine of the town of Acme there lived 100 to 150 people, the nearest residence being about 75 yards from the mine; that one of the main roads in Acme ran within 75 or 100 yards of a small house where dynamite caps were stored by defendant, and at this point a road or path ran from this road to the-house; that the house and machinery at the mine were visible from the-thoroughfare.

2. At this mine blasting was carried on and dynamite and dynamite-caps were used for blasting purposes.

3. That neither mine, house, nor blasting place was enclosed or fenced in.

4. That prior to the time of plaintiff’s injury, children were seen playing around the mine and near the house.

5. That the path from the road led to the small house where the dynamite caps were kept.

6. That the door to the house had a hole cut in it, and a hook on the-inside with which to fasten the door, and in order to open the same a person would run his hand into a pigeon hole, unfasten the hook and open the door.

7. That the door was not kept locked or nailed up.

8. That the plaintiff, then a boy seven years of age, having gone to school that day and there being none, started to Acme and arrived at the place where the path led to the house where the dynamite was kept;. he walked down the path and looked in the door, which was open, and saw two boxes of dynamite caps — one of them being closed and the other-open. He went into the house, took five of the caps and carried them home with him. Upon arriving home he went to the fire and was holding-his hand to the fire, in which hand he held one of these caps, which exploded, blowing off two of his fingers and injuring his right eye.

9. That the plaintiff did not know the dangerous character of the-cap, not having seen one before.

This brings the plaintiff’s case within .the principle of Barnett v. Cotton Mills, 167 N. C., 580, in which the authorities dealing with injuries to children by explosives are collected and from which we quote briefly as follows:

> “In Powers v. Harlow, 53 Mich., 507, Judge Cooley says: ‘Children,, wherever they go, must be expected to act upon children’s instincts and impulses, and others who are chargeable with a duty of care and caution towards them, must calculate accordingly. If they leave exposed to the observation of children anything which would be tempting to-them, and which they in their immature judgment might naturally *443suppose they were at liberty to handle or play with, they should expect that liberty to be taken.’ In this case it was held that the defendant was guilty of negligence, when it appeared that defendant kept on his premises over which the injured person, a boy, was in the habit of passing, in an exposed place, certain dangerous explosives, which a boy discovered and exploded with serious injury to his person.

> “In Mattson v. Minnesota Ry. Co., 95 Minn, 471, Justice Brown says: ‘There is nothing so attractive to young boys as articles of an explosive nature, and the greater the volume of sound that may be produced, the greater the attraction. As compared with ordinary turntable, dynamite is vastly more attractive. Young'children are incapable of comprehending the dangers in handling or exploding the same, and their natural instincts urge them into experiments with it whenever it comes within their reach. The degree of care required of persons having the possession and control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost care must be exercised respecting the care and custody of such instrumentalities to guard against injury to others. The degree of care must be commensurate with the dangerous nature of the article, and greater and more exacting as respects young-children.’ ... In Olson v. Home Investment Co., 27 L. R. A. (N. S.), 884, it was held that the act of boys in stealing or attempting to explode dynamite negligently left unguarded in an unlocked shanty on a vacant city lot is not such an intervening cause of injury to one of them by an explosion as will, as a matter of law, relieve the owner from liability for the injury, if the boys might have been found from their age and knowledge of right and wrong to have been governed by unreasoning and natural impulses. ... In Brittingham v. Stadiem, 151 N. C., 302, Justice Manning quotes with approval from Mattson v. R. R., supra: ‘The degree of care required of persons having the possession and control of dangerous explosives, such as firearms and dynamite, is of the highest. The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article’; and the same case is cited by Justice Brown in Wood v. McCabe, 151 N. C., 458, in support of the proposition that ‘All courts and writers agree that the degree of care required of persons using such instrumentalities as dynamite in their business is of the highest and what might be reasonable care in respect to grown persons of experience would be negligence as applied to youth and children. 7 A. & E., 411; Mattson v. R. R., 111 Am. Sr., 487.’ ”

We have examined the other exceptions and find nothing justifying a new trial.

No error.

*444BROWN, J.,

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.