American Bauxite Company v. Dunn

• Decision Date: 12 July 1915
• Docket Number: 117
• Citation: 178 S.W. 934,120 Ark. 1
• Parties: AMERICAN BAUXITE COMPANY v. DUNN
• Court: Arkansas Supreme Court

178 S.W. 934

120 Ark. 1

AMERICAN BAUXITE COMPANY v. DUNN

No. 117

Supreme Court of Arkansas

July 12, 1915

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

Edward F. Dunn instituted this action against the American Bauxite Company to recover damages for injuries received by him while in the employment of said company.

In March, 1914, the American Bauxite Company was engaged in getting ore out of its mines in Saline County, Arkansas, and had been so engaged for several years. The plaintiff, Edward F. Dunn, testified that he was forty-nine years of age, and that on the 26th day of March, 1914, he was in the employment of the American Bauxite Company engaged in stripping dirt off of the ore; that he boarded with a Mr. Lorah, who lived about a mile and a half from where he was engaged at work; that in going to and from his work he passed by a place where some of the company's servants were engaged in blasting and that it was usual to cry "fire" before a blast was set off; that on the evening of the 25th inst. before going home he hid a shovel with which he worked because it was a new one; that he got up the next morning before daylight and started to work, that he might get his shovel before any of the other employees could find it; that it commenced to rain while he was en route to his work and he went into a house belonging to the company and stayed there till daylight; that just after he reached the path he was accustomed to use on his way to his work a blast was fired off without any warning to him and in a few feet of him; that the shock of the explosion threw him with great violence to the ground; that he got up and tried to get away but before he could do so several other blasts were fired which again hurled him violently to the ground; and that he was subsequently carried to the hospital, where he was treated for some time.

Two physicians who attended him testified as to the character and extent of his injuries and said that they believed them to be permanent.

On the part of the bauxite company it was shown that the regular time for the plaintiff to begin work was fifteen minutes after 7 o'clock in the morning and that the plaintiff did not leave for work on the morning he was injured until 8 or 9 o'clock; that he was seen walking down the railroad track, staggering like he was drunk; that as he passed along the embankment by a deep cut he staggered and fell into the cut; that he was picked up and carried to the hospital in an unconscious condition; and that his injuries were caused by this fall.

The company showed that blasting was usually done in the morning before the men went to work, at noon while they were gone to dinner, or in the evening after they had quit work; and that blasting was never done before daylight because it would be dangerous to work with dynamite by artificial light.

In rebuttal the plaintiff denied that he was drunk on the morning he was injured, and stated that he left his boarding house about 6 o'clock in the morning and that it was not yet daylight when he was injured.

Other facts will be stated or referred to in the opinion.

The jury returned a verdict in favor of the plaintiff and the defendant has appealed.

Judgment reversed and cause remanded.

W. R Donham, for appellant.

1. The court erred in its instructions with reference to the use of explosives in making it the absolute duty of the users thereof to protect persons from injury, whether such injury and the presence of persons within the area of danger at the time of the discharge of the explosive can be reasonably anticipated or not, thereby making the the user of the explosive an insurer against injury of all persons. That is not the law. 26 Cyc. 1112; 53 Ark. 381; 79 Ark. 608; Id. 353.

2. Likewise the court's instructions with reference to giving notice to passers-by make it the absolute duty of the user of the explosive to give such notice, whether there is any reason to believe the safety of any person will be endangered or not, whereas this court has stated the true rule to be that "one who is engaged in blasting rock will be liable for injury caused by his failure to give timely notice of a blast to one whose safety he has reason to believe will thereby be endangered." 53 Ark. 381, supra.

3. In charging a jury on the measure of damages, it is erroneous to use language therein which will permit the jury to consider an element of damages concerning which there has been no evidence introduced. 82 Ark. 499; 109 Ark. 29.

4. The court's dissertation on the law relative to expert testimony, was misleading, and was an invasion of the province of the jury in their right to determine what weight should be given to the testimony of the several witnesses.

It is for the jury to determine what weight to give to an expert's opinion, under the circumstances of the particular case. 94 Ark. 75.

5. Under the issues raised by the pleadings, it was competent to prove that appellee received his injuries because of his being drunk and falling into the deep cut, and it was patent error for the court to exclude from the jury's consideration the testimony of the witnesses offered by appellant to show his condition on the morning he was injured. 46 Ark. 182; 29 Cyc. 620; 7 Enc. of Ev. 777-8; Lawson on Expert & Opinion Evidence, 473; 79 S.W. 531; 121 Ia. 106, 96 N.W. 722.

6. Many witnesses testified that appellee did not leave his boarding place on the morning of the injury until between 8 and 9 o'clock, in fact all so testified except the appellee himself. If he did not leave earlier than the time stated and if the blasting, if done at all, was done between 6 and 7 o'clock, it is clear that the plaintiff had no right to recover, and the court erred in refusing an instruction covering that phase of the case. 50 Ark. 545; 77 Ark. 128; 82 Ark. 499; 93 Ark. 564.

J. S Utley and X. O. Pindall, for appellee.

1. The court's instructions taken as a whole, which is the only proper way to consider them, are without prejudicial error. It is certainly not proper to segregate the instructions into separate parts for the purpose of finding reversible error as is attempted by appellant, but all must be read together. 93 Ark. 140; 85 Ark. 179; 87 Ark. 243; 83 Ark. 61.

Indefiniteness and uncertainty will ordinarily not constitute ground for reversal, in the absence of a request for more specific instructions. 38 Cyc. 1599; 34 Col. 345; 78 Ark. 100.

It is incumbent on those who are engaged in blasting to give timely notice of each blast, that one may have sufficient time to escape the danger. 19 Cyc. 10; 53 Ark. 381; 53 Ind. 337; 88 Me. 263; 34 A. 30; 17 Am. St. Rep. 476; 110 Mich. 78; 64 Am. St. 329; 50 Mich. 163; 45 Am. Rep. 30; 39 L. R. A. 834; 97 Am. Dec. 761; 53 Am. St. Rep. 584; 32 Id. 786; 23 Cent. Dig., "Explosives," § 10. A failure to give such notice is in some jurisdictions made negligence per se by statute, while in others the question of negligence from such omissions is for the jury. 97 Am. Dec. 761; 64 Am. St. Rep. 329. And whether or not a certain warning was sufficient has also been held a question of fact for the jury. 50 Mich. 163; 45 Am. Rep. 30. See also 16 Ark. 308.

Persons using a powerful explosive in blasting are charged with knowledge of any fact in reference to its actual effect that they could by reasonable diligence have ascertained, and with the duty to adopt some means to protect persons placed in danger by the explosion of such blasts. A failure to perform this duty is negligence for which they are liable in damages. 32 Am. St. Rep. 786; 4 Wash. 436; 31 Am. St. Rep. 936, note.

Those engaged in blasting are bound to give notice to all persons who may be passing within the limits of possible danger at the time of firing the blast. 37 N.Y. 637; 97 Am. Dec. 761.

The last four lines of the court's instruction on expert testimony removes all objections the appellant raises to it. It is not in any sense an invasion of the province of the jury. 94 Ark. 538; 93 Ark. 548; 89 Ark. 178. It was not incumbent on the court to single out the appellant's theory as to the time the appellee left the boarding house and place undue emphasis upon it by giving the instruction 7, requested by appellant. 89 Ark. 522; 175 F. 911; 88 Ark. 7.

2. Appellant was not prejudiced by the court's action in regard to the attempt to show intoxication on the part of appellee.

OPINION

HART, J., (after stating the facts).

The plaintiff boarded with Mr. Lorah at the time he was injured and had boarded there about two months prior thereto. The defendant offered to prove by Mr. Lorah and his wife that they saw the defendant at the breakfast table on the morning he was injured and that he was very drunk; and that he left the house about 8 or 9 o'clock and was very drunk then.

The court specifically instructed the jury that the statements of Mr. and Mrs. Lorah as to their opinion as to whether or not the plaintiff was drunk were withdrawn from their consideration and that they could not consider such testimony under any circumstances in determining the issues in the case.

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