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Violation of section 2440, O. S. 1931, 21 Okla. St. Ann. sec. 1197 (providing that whoever shall lay out strychnine or other poison, except in a safe place on his own premises, is guilty of a misdemeanor), does not render the defendant negligent per se in an action by one who was injured solely by an explosion of said poison.
The plaintiff was an employee in the coffee shop in the Huber Hotel in Muskogee, Okla. The hotel was owned by the defendant. The defendant leased the coffee shop to a Mrs. Schultz, and exercised no control over her operation thereof. The defendant, however, did furnish the lessee with some cans of rat poison, for the purpose of exterminating rats in the restaurant. One of the plaintiff's duties was to light the steam table in the restaurant. On the day of the accident involved herein, she lighted a match and extended it into the steam table at or near the place where the gas burner would ignite, but before she turned on the gas there was a flash or explosion which apparently was caused by the ignition of a can of rat poison near her hand. She was severely burned on that hand, and thereafter brought this action against the defendant owner of the hotel. Both sides waived a jury, and at the conclusion of the evidence and argument the trial judge made certain findings of fact and conclusions of law and held in favor of the defendant. The plaintiff appealed. The plaintiff contended that defendant was liable by reason of section 2440, O. S. 1931, 21 Okla. St. Ann. sec. 1197, reading: "Whoever shall, except in a safe place on his own premises, lay out strychnine or other poison, is guilty of a misdemeanor."
Was defendant liable to plaintiff under section 2440, O. S. 1931, 21 Okla. St. Ann. sec. 1197?
The court found that the purpose of section 2440, O. S. 1931 is to protect persons and animals from injury by being poisoned. The injury here was not the class of injury intended to be prevented by the statute. There was no connection between the poisonous nature of the substance and plaintiff's injury. It is not enough for a plaintiff to show that the defendant neglected a duty imposed by statute. He must go further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him. Plaintiff having in no way become poisoned by the "rat doom" furnished by defendant, the said section of the statute did not, of itself, render the defendant negligent as to plaintiff's injury. In incidents such as are involved in the present case, knowledge on the part of the defendant, or circumstances sufficient to charge him with knowledge, that the substance or article is inherently dangerous is necessary before the defendant can be charged with negligence. While it is clear enough that the defendant knew or should have known that the compound was poisonous, that does not indicate that he knew or should have known that it was explosive or inflammable. The defendant furnished the lessee an ordinary commercial product. Not only does the evidence affirmatively show that the product was not in fact highly inflammable or inherently dangerous as an explosive, but said evidence fails to show that the defendant had or reasonably should have had knowledge of any latent or unsuspected defect which may have existed in this particular can of the rat poison. Not having such knowledge, and the evidence failing to show that he reasonably should have had such knowledge, there was no duty upon the defendant to impart any notice or warning of danger to the plaintiff. Notice or warning of danger is not necessary where no danger is reasonably to be anticipated.