1 Reported in 13 N.W.2d 382. This is an appeal from an order denying defendant's motion for judgment or a new trial. The sole question presented for decision is whether there was negligence on the part of defendant. The action was brought to recover damages for personal injuries to plaintiff, a six-year-old boy, who was burned by an open flare that had been placed as a warning in front of an open trench in one of defendant's streets. A water main was being laid in a residential street, the work being done as a WPA project. The plans for the project were approved and the work authorized by the village, although the actual work was done and supervised by the WPA. On November 26, 1941, the day's work was completed about 4:15 p. m. As is the custom, barricades were placed around the open trench. Those at each end had the words "Road Closed" painted on them, and red lanterns were hung along the sides of the other barricade. At the ends of the trench, in front of the barricades, were placed flares of the type usually used on highways. These flares, designated by one witness as a "bomb," are about seven inches in diameter, six inches in height, and burn with a flickering flame several inches high. These warning devices were the property of and were furnished by the WPA. The evidence shows that the children in the neighborhood had played in the sand around the excavations for some weeks as the work progressed and around the flares after they were set out. The injury to plaintiff occurred about 5:00 p. m. of the day mentioned. It was quite dark at the time. Several small children, including plaintiff, were standing around one of the burning flares *Page 467 when a neighbor saw plaintiff in flames. He was severely burned about the legs. Plaintiff had a verdict of $2,100. There is no claim that it is excessive. The contention of defendant is that, under the circumstances, the use of a flare for the purpose of giving warning of an excavation in a public street was not actionable negligence and did not constitute a breach of the village's duty to exercise reasonable care to keep its streets in a safe condition. It relies on Clark v. City of Bremerton, 1 Wn.2d 689,694, 97 P.2d 112, 114, where a flare of the same type as that used here was instrumental in the death of a ten-year-old boy who, with three other children, was playing with it. The court there held that there was no liability and said: "The quoted testimony shows that the accident was brought about by the child's own intermeddling with the lighted flare pot." There is no contention here that the plaintiff was negligent as a matter of law, so the Washington case is not helpful. In Brown v. City of Minneapolis, 136 Minn. 177,161 N.W. 503, which was cited with approval in Clark v. City of Bremerton, supra, …
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