Morris v. E. I. Du Pont de Nemours & Co.

• Citation: 109 S.W.2d 1222,341 Mo. 821
• Parties: Jewell Morris, Appellant, v. E. I. Du Pont de Nemours & Company, a Corporation, and Martin Raithel
• Decision Date: 17 November 1937
• Court: United States State Supreme Court of Missouri

109 S.W.2d 1222

341 Mo. 821

Jewell Morris, Appellant, v. E. I. Du Pont de Nemours & Company, a Corporation, and Martin Raithel

Supreme Court of Missouri

November 17, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Reversed and remanded.

Karl P. Spencer and Francis R. Stout for appellant.

(1) The giving of defendants' Instruction 2, stating that negligence is a positive wrong, not to be presumed emphasizing a heavy burden of proof upon the plaintiff, and directing a verdict for defendants if the truth "remains in doubt," etc., was prejudicial error, depriving plaintiff of a fair trial and requires a reversal of the judgment. The instruction has been condemned by this court in numerous decisions. Sheehan v. Terminal Railroad, 336 Mo. 709, 81 S.W.2d 305; Payne v. Reed, 332 Mo 343, 59 S.W.2d 43; Aly v. Terminal Railroad, 336 Mo. 340, 78 S.W.2d 851; Collins v. Beckmann, 79 S.W.2d 1052; Werminghaus v. Eberle, 81 S.W.2d 607; Dempsey v. Horton, 84 S.W.2d 621; Tabler v. Perry, 85 S.W.2d 471; Koebel v. Tieman Coal & M. Co., 85 S.W.2d 519; Grimes v. Red Line Service, 85 S.W.2d 767; Rouchene v. Gamble Const. Co., 89 S.W.2d 58; Nelson v. Evans, 93 S.W.2d 691. (2) The giving of defendants' Instruction 5 to find for the defendants if the jury was "unable to determine" whether the explosion was caused by defective dynamite or by plaintiff tamping with an iron bar, was error because: (a) The "unable to determine" expression required absolute proof (the same as Instruction 2) and not a preponderance of the evidence. Nelson v. Evans, 93 S.W.2d 691. (b) The instruction, in effect, declares that tamping with an iron bar instead of a wooden stick would be contributory negligence as a matter of law, although that was, at most, merely a question of fact. (c) It submits contributory negligence as a defense, although it was not pleaded, and, therefore, could not be a submissible issue for the jury. (d) It submits the hypothesis that even though the dynamite was defective, as alleged, the explosion was caused by tamping with an iron bar instead of a wooden stick, which was not supported by the evidence. (e) It fails to require a finding that tamping with an iron bar instead of a wooden stick was or could be a proximate cause of the premature explosion.

Abel Klaw, Jones, Hocker, Gladney & Jones, Lon O. Hocker, James C. Jones, Jr., and Arnot L. Sheppard for respondents.

(1) Regardless of the correctness of the instructions given by the court on behalf of respondents and attacked in appellant's brief, this cause should be affirmed, for the reason that appellant's evidence is insufficient to make a prima facie case for the jury; and respondents' instructions B and C, in the nature of demurrers to the testimony, requested at the close of all of the evidence herein, should have been given. Trainer v. Mining Co., 243 Mo. 370. (2) The evidence of both appellant and respondent shows that the particular batch of dynamite from which the cartridge which exploded and injured appellant was taken, was mixed by machinery for a period of five minutes. The undisputed evidence of appellant's experts proved that five minutes was two minutes longer than is necessary to mix the ingredients of dynamite in order to have those ingredients uniformly and thoroughly mixed. Therefore, the uncontradicted evidence discloses that the dynamite was properly mixed. State ex rel. Bowden v. Allen, 85 S.W.2d 67; Rohrmoser v. Household Finance Corp., 86 S.W.2d 112; State ex rel. Gosselin v. Trimble, 328 Mo. 769. (3) The evidence of both appellant and respondent, considered separately and together, leaves the cause of the explosion of dynamite which injured appellant wholly unknown. It may have resulted from any one of a large number of causes, exclusive of the alleged imperfections in the dynamite itself, for none of which are the respondents responsible. To find for appellant the jury, therefore, would have been compelled to speculate on what was the cause of the explosion. For this reason no case was made for the jury. Du Pont de Nemours Powder Co. v. DuBoise, 236 F. 690; Sabol v. Cooperage Co., 282 S.W. 425; Hamilton v. St. L. & S. F. Railroad Co., 300 S.W. 787; Patton v. Ry. Co., 179 U.S. 658, 45 L.Ed. 364; Severn v. Ry. Co., 281 F. 786; Levi v. Ry. Co., 157 Mo.App. 546; Carter Oil Co. v. Independent Torpedo Co., 232 P. 419; Eastern Torpedo Co. v. Shelts, 247 P. 974; Parker v. Gulf Refining Co., 80 F.2d 795. (4) The testimony of appellant's expert witness Cuno violates the rule against basing one inference or presumption upon another. The only facts shown in evidence are: (a) That certain cartridges failed to explode. (b) That others exploded, but the explosions were "weak," barely disrupting the clay into large lumps. (c) That still other explosions were abnormally violent and "powdered" the clay. (d) That the cartridge in question exploded prematurely. State ex rel. Mo. Pub. Util. Co. v. Cox, 298 Mo. 433; Hays v. Hogan, 273 Mo. 1; State v. Lackland, 136 Mo. 33; Phillips v. Travelers, 288 Mo. 175; McAnany v. Henrici, 238 Mo. 117. (5) The danger of using a metal tamping rod in loading holes with dynamite is a matter of such common knowledge that no proof should be necessary to establish it as a fact. However, the record in this case does show, not only by respondents' evidence, but by the expert evidence of appellant as well, that it is not "good practice" to use any kind of a metal rod to tamp dynamite. There are but two instruments shown in the evidence which appellant could possibly have used for this purpose, namely, the broomstick and the metal scraper. Appellant claims that he was using the broomstick as a tamping rod when the explosion occurred, and that it was one and one-half or two feet down in the hole at the exact moment of the explosion. This evidence is so wholly incredible, considering the present condition of the broomstick, as to constitute no evidence at all that appellant actually was using it as a tamping rod; it is so wholly contradictory to mankind's common experience that no credit can be given it whatever. Miller v. Schaff, 228 S.W. 491; Cadwell v. Stove Co., 238 S.W. 418; Sexton v. Ry. Co., 245 Mo. 272; Schupback v. Meshevsky, 300 S.W. 465. (6) Appellant's evidence discloses that prior to this accident complaint had been made to the foreman of the mining company regarding this dynamite. Therefore the mining company had knowledge of its alleged defective condition, and its negligence in selling and permitting appellant to use the alleged defective dynamite was the efficient cause intervening between appellant's injury and the alleged negligence of the Du Pont Company. Griffin v. Jackson Light & Power Co., 87 N.W. 888; Olds Motor Works v. Shaffer, 140 S.W. 1047; Lewis v. Terry, 43 P. 398.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

The plaintiff was employed as a clay miner by the Parker-Russell Mining & Manufacturing Company in its clay mining operations at Wellsville, Missouri. On April 17, 1929 while engaged in his work of mining clay, and in placing dynamite preparatory to blasting, he was injured by a premature explosion of the dynamite, which resulted in the loss of sight of both eyes, a ruptured ear drum, and other serious injuries about his face, head, and arms. Plaintiff's evidence was well nigh conclusive that the dynamite which thus prematurely exploded had been manufactured by the defendant E.I. Du Pont de Nemours & Company, a corporation (hereafter referred to merely as the Du Pont Company) at its "plant" at Ashburn, Missouri, on the preceding December 26, 1928, and it is admitted that defendant Martin Raithel, employed by the Du Pont Company as "mixing house foreman" at the Ashburn plant "mixed" the dynamite made there on that date. The petition in substance alleges that Raithel "carelessly and negligently" mixed the particular "batch" of dynamite of which the stick that prematurely exploded and injured plaintiff was a part, so that the explosive element, nitroglycerin, was "unevenly mixed with the inert or nonexplosive matter," and that "part of said inert or nonexplosive matter contained more of the explosive element than other parts of said inert matter, as a result of which that part which contained more of the explosive than the other parts was very explosive, and liable and likely, and would explode upon very slight friction or on a very light blow or slight rubbing against any other object, and would explode if subjected to the friction and handling necessary and incident to its use as an explosive, and in loading it in a drilled hole preparatory to . . . blasting, and in using it for the purposes for which it was manufactured and in handling it as dynamite of the class that it was supposed and represented and labeled to be . . . is ordinarily, customarily and necessarily handled, and that by reason thereof it was dangerous to persons, and in particular plaintiff, handling, being near or coming in contact with it, and by reason thereof it . . . did prematurely explode." It is further alleged that "after so manufacturing it" Raithel "negligently and carelessly . . . placed the said dynamite . . . where it would be . . . sold and shipped to the buyer and user thereof; . . ." that defendants "knew the said dynamite was mixed improperly;" that defendant Du Pont Company "knew or by the exercise of ordinary care would have known, the facts aforesaid, and . . . negligently and carelessly sold the said dynamite" and "delivered" "and placed it where the public and particularly plaintiff would come in contact with same." The petition also states that "prior to the commencement" of this action, the mining company "assigned" to plaintiff "its right of action against defendants and authorized ...