Barnes v. Zettlemoyer

• Decision Date: 23 March 1901
• Citation: 62 S.W. 111
• Parties: BARNES v. ZETTLEMOYER.
• Court: Texas Court of Appeals

62 S.W. 111

BARNES v. ZETTLEMOYER.

Court of Civil Appeals of Texas.

March 23, 1901.

Appeal from district court, Comanche county; N. R. Lindsey, Judge.

Action by Samuel Zettlemoyer against William Barnes. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Wilkinson & Reid, for appellant. G. H. Goodson and J. W. Boynton, for appellee.

STEPHENS, J.

The parties to this controversy owned adjacent lots in the town of Comanche, upon each of which was a one-story stone building, used by its owner as a place of business. Appellant's house was destroyed by fire, and appellee's was injured at the same time by an explosion in that of appellant. This action for damages was consequently brought by appellee against appellant, and resulted in a verdict and judgment in his favor for $500, from which this appeal is taken.

The ground of liability was thus stated in appellee's petition: "That on the night of December 31, 1899, the defendant then carelessly and negligently had in his house a great quantity of dynamite, to wit, between about thirty-five and forty-five pounds, and at and theretofore kept and had kept said dynamite in one lot in a box open and uncovered in the front part of defendant's store, underneath a counter, with heavy counters and shelving above and immediately around and adjacent to it loaded down with heavy articles of hardware; and at the same time and place kept, and had kept, in his said building, in very close proximity to said dynamite, large quantities of gunpowder, gun and pistol cartridges, and other explosive matters, and under circumstances that it was then and there apparent to the said Barnes, and was then and there apparent to any person of ordinary care and prudence in the handling and keeping of said explosives, that, in the event said explosives should explode, that the same would be dangerous and destructive to property adjoining thereto, and especially that it would destroy plaintiff's said house. * * * And that its said injury and destruction was directly and proximately caused by the carelessness and negligence of the defendant in having and keeping in his said store building, in the manner before stated, of said dynamite and other explosives, and in his carelessness and negligence in the manner in which he kept and handled said explosives therein, to wit, in handling, keeping, and permitting them to be in such near proximity to each other that said explosives became and were the active agents in the explosion of said dynamite, and the active agents in aiding and adding to the force and effect of said dynamite explosion; and, unless in the manner above stated, by such carelessness and negligence of the defendant, plaintiff's house would not have been injured." The court submitted the issue to the jury in its twofold aspect, as thus alleged, of liability both on account of the quantity of dynamite kept and on account of the manner in which it was kept. To meet the issue as to the quantity of dynamite kept, appellant offered to prove by F. M. McDermott, as stated in his brief, "that the witness had had a number of years' experience in the hardware business, and in the handling of dynamite in connection therewith, in the town of Comanche, Texas, and was acquainted with the custom and usage of well-appointed and well-conducted hardware establishments and concerns, both in the town of Comanche and generally, as to the amount of dynamite kept in stock and on hand by them, and their manner of handling same in the conduct of their business; that the keeping in stock and handling of dynamite is a part of the hardware business; and that it is the custom and usage of well-appointed and well-conducted hardware establishments and concerns in this section of the country, and generally throughout the country, to carry in stock as much as fifty pounds of dynamite of the kind carried by the defendant at the time of said fire." This testimony, as well as that of other witnesses as to how they did business in Comanche, was excluded as incompetent, and to this ruling error is assigned upon the ground that, as stated in the proposition submitted under the assignment, "the question being as to...