# Stewart v. United States > Court of Appeals for the Seventh Circuit · January 10, 1951 · 186 F.2d 627 URL: https://www.frixlaw.com/law-library/cases/9442711 ## Case - **Full name:** STEWART Et Al. v. UNITED STATES - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** January 10, 1951 - **Citations:** 186 F.2d 627; 1951 U.S. App. LEXIS 3624 - **Precedential status:** Published - **Opinion:** Dissent by Duffy - **Judges:** Major, Duffy, Swaim - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9442711 ## Opinion text DUFFY, Circuit Judge (dissenting in part). The district court had before it the motions for summary judgment made respectively by the plaintiffs and by the defendant. The court overruled the motion of plaintiffs and granted defendant’s motion and entered judgment dismissing the complaint. As there are a number of issues *635 of material facts here involved, I agree that the judgment based upon the order granting defendant’s motion for summary-judgment should be reversed. The original majority opinion stated, “We con elude that the court should have allowed plaintiffs’ motion for a summary judgment * * * n The direction to the district court in the majority opinion on rehearing is “to proceed in accordance with the views herein expressed.” I am uncertain what result is intended by the change in direction, since the majority opinion after rehearing is substantially the same as the earlier opinion, except that all reference to Title 16 U.S.C.A. § 457 is eliminated. I assume that the majority still believes that the plaintiffs are entitled to recover judgment as a matter of law, and that all that is left for the district court to do is to assess the amount of damages. In my original dissenting opinion I pointed out that the district court’s order denying plaintiffs’ motion for summary judgment was merely an interlocutory order and was not appealable. Assuming, however, that jurisdiction exists to review the order of the district court denying plaintiffs’ motion for summary judgment, due to the fact that this court did have jurisdiction to pass on the judgment dismissing the complaint, I am. of the opinion that the record fails to show that the plaintiffs are entitled to judgment as a matter of law. It is of course fundamental that when a case comes before us on appeal from summary judgment we have no right to rely upon evidence which is in dispute. In my judgment in determining that the United States Government was negligent, the majority is relying upon evidence which is disputed in this record. As an illustration, in the opinion of the majority it is stated, “The military reservation was open to the public, with free access to persons of all ages. * * • * The Magazine Area was accessible to the people. The perimeter fence had a large opening where it was broken down at a point near the Magazine Area * * *.” While there is evidence to sustain the statements above quoted, yet the following picture of the situation can also properly be painted from evidence appearing in the record before us, and by taking judicial notice of the statutes of Illinois: In 1887 the State of Illinois ceded jurisdiction to the United States of the land now occupied by Fort Sheridan. Thereafter the United States Government maintained thereon a military reservation for the use of the United States military forces and has kept on said reservation various kinds of military supplies, vehicles and equipment. It stored ammunition and other explosives on a portion thereof known as the Magazine Area. This part of the reservation was restricted to all persons except those who were given permission to go thereon by the Ordnance Officer. A large sign, 3 ft. by 4 ft., was posted on the roadway leading to the Magazine Area which read, “Danger — Military Explosives — This Road Closed to Public Traffic.” Two other large signs in the Magazine Area were plainly marked, “Explosives- — -Restricted Area — All Unauthorized Persons Prohibited.” In addition there were eight or ten other signs reading, “Danger — No Open Fires, Lighters, or Matches.” There also was a “Keep Out” sign on the doorway of the gate to the Magazine Area. The entire reservation was surrounded by a wire fence 6 ft. high, with barbed wires on top, which was (in 1947) in good condition except when broken into. The Magazine Area in which the smoke grenades were stored was not visible to persons standing outside the outer fence. In the Magazine Area an enclosure had been created by a cyclone type wire fence 6 ft. high, with three strands of barbed wire extending an additional foot above the fence. The smoke grenades were stored within this enclosure, in accordance with Army direction, and were covered by tarpaulin. In the early part of 1947 three high school boys, Robert Too-good, Leslie Baldwin and George Baldwin, without permission by Army authorities, and at night, came over or through the perimeter fence of the reservation and, as thieves and trespassers, climbed over the fence in the Magazine Area which enclosed the boxes of smoke grenades. They car *636 ried away four boxes of grenades and hid them in the dump in the woods north of Fort -Sheridan. Later the boys exploded some of the grenades on the beach. One box was taken to the home of Robert Too-good. About one and a half years later the two Stewart boys discovered a box of grenades in a vacant lot next to- the Baldwin residence in Lake Forest, and caused one of the grenades to explode, causing injuries to both boys. It seems clear to me that if a jury, or under the Tort Claims Act the trial judge, believed from the evidence that the foregoing statements appearing in the record were true, it would follow the negligence on the part of the United States Government had not been established as a matter of law. Surely this is a case where there should be a trial on the merits. In the event of an appeal, we would then have before us findings on the disputed questions of fact, and we would then be in a position to judge whether reasonable care commensurate with the apparent danger had been used by the Army authorities at Fort Sheridan, in storing the smoke grenades. Possibly the majority’s definition of smoke grenades, “that they were an explosive calculated to do great harm,” is correct but my impression has been that they are designed not to cause great harm, and that, in contrast to ordinary explosive grenades, which are designed to kill or injure people, smoke grenades are used for concealing the movement of troops or vehicles, or for other tactical operations under circumstances when it is desirable-that no injury be caused to persons in the vicinity where the bomb is exploded. Of course some explosive force is required to release the smoke, and some injury might thereby be inflicted, and they might be classified as capable of doing harm — just as sharp knives or bayonets might, if played with by boys. In any event, in order to ascertain what reasonable care of them should have been exercised, testimony should be offered and received on a trial on the merits as to the construction and use of smoke grenades. The majority opinion acknowledges that the question of proximate cause is the most serious impediment of plaintiffs’ right to recover. The rule in Illinois, as elsewhere, is that the question of proximate cause is usually one of fact to be decided by a jury. In my judgment the record before us does not justify this court in deciding as a matter of law that negligence on the part of the United States Government was the proximate cause of the injuries suffered by the Stewart boys. The majority opinion states, “They (the three high school boys) shot off many of the grenades and left one case in a vacant lot next to the Baldwin residence in Lake Forest.” That statement is not supported by any evidence in the record. The affidavit of Toogood shows that he took one box to his home, but the record absolutely fails to reveal-any evidence .that any of the four boxes of grenades stolen by the three boys was left in the vacant lot next to the Baldwin home where a box of grenades was found by the Stewart boys a year and a half later. Furthermore there had been at least one other theft of explosives from the Magazine in the early months of 1947 according to the affidavit of Sgt. Shaner. Every doubt as to the existence of a genuine issue as to a material fact must be resolved against the plaintiffs on their ^ motion for summary judgment. The government is entitled to the benefit of all favorable inferences which might be reasonably drawn from the evidence. Toebel-man v. Missouri-Kansas Pipe Line Co., 3 Cir., 130 F.2d 1016, 1018 . The statement by the majority, “That the injuries were attributable in part to the wrongful activities of the boys who entered the Magazine Area and removed the grenades is not open to doubt * * * ” is, I submit, not justified by the record before us. Great reliance is placed in the majority opinion on a decision by an intermediate Illinois appellate court, Ostergard v. Frisch, 333 Ill.App. 359 , 77 N.E.2d 537 , where an owner was held liable for leaving, contrary to statute, an automobile unlocked with the key in the ignition while such automobile was parked on a city *637 street. It can hardly be said that this decision establishes the controlling law which governs here. Illinois courts have insisted that a plaintiff prove that the negligence of a defendant was the proximate cause of his injuries even in cases involving explosives like nitroglycerin, Bunyan v. American Glycerin Co., 230 Ill.App. 351 , and dynamite, Haas v. Herdman, 284 Ill.App. 103 , 1 N.E.2d 568 . The plaintiff in Matijevich v. Dolese & Shepard Co., 261 Ill.App. 498 , was ten years of age and was injured by the explosion of dynamite caps which had been taken from defendant’s quarry by plaintiff and a companion. After taking the caps home a match was applied to one of the caps and an explosion occurred. The court held that the plaintiff could not recover as a matter of law, citing Anderson v. Karstens, 218 Ill.App. 285 . In the Anderson case the defendant was a contractor who left cans of gasoline upon his lot where sand was piled in which children were known to play. The plaintiff, about eight years old, and some other young children carried some of the cans to an alley. Some one or more of them poured the contents of one can into a larger one and dropped a lighted match into it. Plaintiff was burned in the explosion which followed. The court said: “This ease, as we view the evidence, discloses that there was the intervention of another and independent element which broke the relation of cause and effect and the supposed negligence of the defendant was, therefore, not the proximate cause of plaintiff’s injury. This intervening cause in this case was the act or acts of other lads who carried the cans from defendant’s lot into the alley, poured the contents of one can into the other and then applied the lighted matches which directly brought about the explosion.” The majority emphasizes that the defendant moved for summary judgment as did the plaintiffs, and seems to argue that therefore our court is precluded from saying that there is a dispute as to material facts herein. Undoubtedly government counsel were convinced of the soundness of their position as a matter of law when moving for summary judgment. At that time they might -have been willing to stipulate a statement of facts as contended for by the plaintiffs. Even so, the record before us clearly discloses that there are issues of material facts and we should not close our eyes to that which plainly appears. I think that we should examine the record to ascertain whether or not there are issues of material facts, regardless of concessions or stipulations made by government counsel, 1 and, finding that such exist, we should order a trial. I agree that the judgment below should be reversed, but feel that the case should be remanded for a trial on the merits. . As indicated in the concurring opinion in United States v. Bowman Dairy Co., 7 Cir., 185 F.2d 159 , which concurring opinion held that the government was not bound by a concession made by government counsel on oral argument. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9442711. Public record. Not legal advice.