presented; but their controlling proposition is that the trial court erred in refusing to instruct the jury to return a verdict in their favor. They, in substance, contend, (1) that the respondent and other boys were trespassers, to whom they owed no other duty than not to wilfully or maliciously injure them; (2) that if appellants were in fact negligent (which they deny), their negligence was not the proximate cause of the accident; (3) that intervening between the storage of the dynamite and the injury were the criminal acts of the boys in stealing the dynamite, caps and fuse, which acts were the proximate cause of the accident; and (4) that the respondent was guilty of contributory negligence as a matter of law.

The respondent contends that the sand made the place attractive to the boys; that they had been in the habit of frequently playing there, a fact well known to appellants; that appellants were guilty of negligence in leaving the loose dynamite in the unlocked toilet where it was apt to be found and taken by the boys; and that such negligence was the proximate cause of the accident.

To sustain appellants' contention that the boys were trespassers, Clark N. Gill and two or three employees of the corporation testified that they had driven them away on several occasions. It is manifest that the boys repeatedly went upon the lots to the appellants' knowledge. This being true, we think the evidence is sufficient to show that the appellants were guilty of the grossest and most culpable negligence in storing the dynamite as they did, concededly in violation of a city ordinance, and in leaving a door unlocked in a locality where, as they knew, the boys frequently went, whether as trespassers or otherwise. They knew the dynamite was a dangerous agency. There is no evidence that they were then using it, or that they intended to use it in the immediate future, or that they would need it at any time. The evidence rather indicates that the dynamite was unlawfully stored and left for an indefinite time in an unlocked, vacant structure

where the appellants must have known the children were liable to be, either as trespassers or otherwise. In support of their contention that they are not liable to respondent, whom they claim to have been a trespasser, the appellants cite Curtis v. Tenino Stone Quarries, 37 Wash. 355, 79 Pac. 955; Burnett v. Fort Worth Light & Power Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504; Masser v. Chicago R. I. & P. R. Co., 68 Iowa 602, 27 N. W. 776; Driscoll v. Clark, 32 Mont. 172, 80 Pac. 1, 373; Le Duc v. New York Cent. H. R. Co., 92 App. Div. 107, 87 N. Y. Supp. 364; Kelly v. Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903; Felton v. Aubrey, 74 Fed. 350. None of these cases are similar to the one at bar. In each of them the defendant was charged with negligence in operating, constructing, or maintaining certain appliances, machinery, or plants used in and necessary to the conduct of his or its business. In the Curtis case the plaintiff, a child, was injured by machinery which constituted a part of the defendant's plant. In the Burnett case the plaintiff, a boy, went upon a roof where he was electrocuted by a wire which, although negligently exposed without being insulated, was nevertheless a part of the defendant's plant. In the Masser and Le Duc cases the children trespassed upon railways. The other cases are similar in principle. It was necessary in each instance for the defendant to have and operate the appliance which caused injury to the trespassing boys. The defendants, even had they known of the trespassing, could not have entirely refrained from installing and operating their several plants or appliances and at the same time continue their business. In the Curtis case this court said:

"To hold, as a general and universal rule of law, that the owners of mills and factories must so construct and maintain their premises as to be reasonably safe for trespassers, infants or adults, regardless of how they may gain admission, would be destructive of all industry and all property rights. We are satisfied, therefore, that the respondent violated no duty it owed to the appellant as a trespasser upon its premises."

Here the appellants, having no apparent use for the dynamite and knowing of the trespassing proclivities of the boys, needlessly stored it, a most dangerous agency, where, in the exercise of ordinary prudence, they should have anticipated the trespassing boys would readily find, be attracted by, and take it. Under such circumstances we cannot hold that the trespassing of the boys should, as a matter of law, excuse the appellants from liability. The degree of care required of those who have control of dangerous explosives is discussed in Mattson v. Minnesota & N. W. R. Co., 95 Minn. 477, 104 N. W. 443, 111 Am. St. 483, 70 L. R. A. 503, the court saying:

"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 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 (Keasbey, Electric Wires, 2d ed., 269, 270), and is greater and more exacting as respects young children. As to such, the care required to be exercised is measured by the maturity and capacity of the child. Railway Co. v. Stout, 17 Wall. 657. What would constitute reasonable care with respect to adults might be gross negligence as applied to a young child. 7 Am. & Eng. Ency. Law (2d ed.) 441, and cases cited. The case at bar, within these rules, is even stronger than the so-called 'turntable cases.' 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 therefrom the greater the attraction. As compared with an ordinary turntable, dynamite is vastly more attractive, and far more dangerous. 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. In view of these considerations, the rule of law imposed upon him who possesses such dangerous articles should be more exacting than in the case of a turntable; and, applying the rule to the facts before us, it is clear that the jury was justified in finding negligence upon the part of the defendant. It

failed to take proper care of dynamite brought into this vicinity, and left it exposed upon the premises where children had, to the knowledge of its servants, been in the habit of loitering and amusing themselves."

The strongest case cited in favor of appellants' contention is Finkbeiner v. Solomon, 225 Pa. 333, 74 Atl. 170, in which a child was injured by an explosive claimed to have been negligently stored; but the court said:

"The facts of the case bring it close to the line of what might be deemed negligence, but we cannot say that the view taken by the court below was wrong. It cannot be said that placing a box of such caps upon a dark shelf in a barn is in itself a negligent act. If defendant had thrown the caps out, loosely, where children were likely to play, and would be apt to find them, the case would have been very different."

Although appellants did not loosely throw out the dynamite, caps and fuse, they might as well have done so as to have placed them where the boys were apt to, and did, readily find them, a result appellants should have anticipated. We do not think the decision cited is so controlling in principle as to require a withdrawal of this case from the jury.

cause.

Appellants, citing many authorities, further contend that their negligence, if conceded, was not the proximate cause of the accident, but that the intervening criminal act of the boys in stealing the dynamite, caps and fuse, and their subsequent acts in attempting to explode the same, were the proximate In an action for damages resulting from negligence, the defendant will be held liable for the natural and probable consequences of his negligent acts. To create such a liability the injury complained of must result from the negligence charged, which will not be considered as too remote if the resulting accident might have been reasonably anticipated. The act of an intervening third party, contributing to the injurious result of the original negligence, does not, in all cases, excuse the original wrongdoer. If such intervening act could, or in the exercise of ordinary prudence should, have been foreseen, the original act still remains the proximate

Opinion Per CROW, J.

[58 Wash. cause of the injury. In this case it was for the jury to determine whether the appellants who carelessly and illegally stored, and it might be said abandoned, a dangerous explosive, should have anticipated that it might come into the possession of young boys who frequented the place, even though they were trespassers.

"In addition to the requirement that the result should be the natural and probable consequence of the negligence it is commonly stated that the consequence should be one which in the light of attending circumstances an ordinarily prudent man ought reasonably to have foreseen might probably occur as the result of his negligence." 29 Cyc. 493.

See, also, Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 96 Am. St. 902, 60 L. R. A. 793; Akin v. Bradley Engineering & Mach. Co., 48 Wash. 97, 92 Pac. 903, 14 L. R. A. (N. S.) 586; Wellington v. Pelletier, 173 Fed. 908; Mattson v. Minnesota etc. R. Co., supra; Powell v. Deveney, 3 Cush. 300, 50 Am. Dec. 738; Scott v. Shepherd, 2 W. Bl. 892; Englehart v. Farrant & Co., 1 Q. B. (1897) 240; Myers v. Sault St. Marie Pulp & Paper Co., 3 Ont. L. R. 600; Labombarde v. Chatham Gas Co., 10 Ont. L. R. 446; Clark v. Chambers, 3 Q. B. (1878) 327, 7 Cent. Law Journal 11; Lynch v. Nurden, 1 Q. B. 29; Illidge v. Goodwin, 5 C. & P. 190; Lake v. Millikin, 62 Me. 240, 16 Am. Rep. 456; Harriman v. Pittsburgh etc. R. Co., 45 Ohio St. 11, 12 N. E. 451, 4 Am. St. 507; Lane v. Atlantic Works, 111 Mass. 136; Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154; Mize v. Rocky Mountain Bell Tel. Co., 38 Mont. 521, 100 Pac. 971, 129 Am. St. 659; Fishburn v. Burlington & N. W. R. Co., 127 Iowa 483, 103 N. W. 481.

No two cases can be found which are identical, and there is an irreconcilable conflict of authority on this question, but we think the above mentioned cases, and many others that might be cited, announce correct principles of law applicable to the facts now before us. In Myers v. Sault St. Marie Pulp & Paper Co., supra, a workman employed by the de