Barnett v. Mills

• Decision Date: 23 December 1914
• Docket Number: (No. 485.)
• Citation: 167 N.C. 576,83 S.E. 826
• Parties: BARNETT. v. CLIFFSIDE MILLS.
• Court: North Carolina Supreme Court

83 S.E. 826

167 N.C. 576

BARNETT.

v.CLIFFSIDE MILLS.

(No. 485.)

Supreme Court of North Carolina.

Dec. 23, 1914.

1. Exlosives (§ 8^*)—Dynamite Cap—Sufficiency of Evidence.

In an action for injuries to a boy 11 years old from the explosion of a dynamite cap, evidence held sufficient to justify jury finding that the dynamite was left by defendant's employes on the ground or in an uncovered box at a place not inclosed and much used by the public, including children.

[Ed. Note.—For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. § 8.*}

2. Explosives (§ 8*) — Dynamite Cap — Things Attractive to Children.

It was negligence to leave a dynamite cap on the ground, or in an uncovered box, at a place not inclosed and much used by the public, including children.

[Ed. Note.—For other cases, see Explosives, Cent Dig. §§ 4, 5; Dec. Dig. § 8.*]

3. Abatement and Revival (§ 15*)—Pendency of Another Action.

A plea of the pendency of another action for the same cause was properly overruled, where such other action had been dismissed by a judgment of nonsuit.

[Ed. Note.—For other cases, see Abatement and Revival. Cent. Dig. §§ 111-117; Dec. Dig. § 15.*] Appeal from Superior Court, Cleveland County; Harding, Judge.

Action by Timmons Barnett, by next friend, against the Cliff side Mills. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for personal injury caused by the explosion of a dynamite cap. The material parts of the evidence are stated in the opinion.

The defendant moved to dismiss the action, because of the pendency of another action for the same cause in Rutherford county, in which a judgment of nonsuit had been entered. The motion was overruled, and the defendant excepted.

There was also a motion for judgment of nonsuit, which was overruled, and defendant excepted.

His honor charged the jury, among other things, as follows:

(1) "Now, if you find, by the greater weight of this evidence, that the defendant was constructing a well there, and that they left lying around on the ground, as testified to by plaintiff and some of the witnesses, these highly dangerous explosives, dynamite caps, the court charges you that it is a dangerous instrumentality, that is, if the evidence disclosed this, that they left them there loose, without any inclosure, no fence around there, nothing to warn the plaintiff of their presence, and that it was a public place, and that the plaintiff was attracted there by the presence of other children, seeing it lying there, and not knowing what it was and its dangerous nature, he took it home, as he contends, and was injured, as he contends, if you find all of that by the greater weight of the evidence, then the court charges you that would be negligence for which the defendant would be liable, and if you find that, that that negligence was the proximate cause of the plaintiff's injury, then you will answer the first issue, 'Yes.' " (Defendant excepted.)

(2) "And in this case if you find that, after using these dynamite caps, defendants, or their employes, went away and left them on the ground, as testified to by the plaintiff, without any inclosure or warning to plaintiff, that would be a negligent act, and if plaintiff, not knowing of its dangerous nature, in the innocence of youth, took it to his home and broke it with a hammer, and it exploded and injured him, if you find there was an injury, and that it was the proximate cause upon the facts outlined by the greater weight of the evidence, then you will answer the first issue 'Yes.' " (Defendant excepted.)

(3) "One who maintains dangerous instrumentalities or appliances on inclosed premises, of a nature likely to attract children at play, or permits dangerous conditions to exist, while not liable to an adult under those circumstances, is liable to a child so injured, though a trespasser at the time the injuries were received." (Defendant excepted.)

(4) "Defendant contends that the defendant's witnesses testified he was present there with him; plaintiff contends that this is not true, and that he never had any such conversation, and as to which is correct. This is left you to decide." (Defendant excepted.)

There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Ryburn & Hoey and Quinn & Hamrick, all of Shelby, and Cansler & Cansler, of Charlotte, for appellant

O. Max Gardner, of Shelby, for appellee.

ALLEN, J. [1] We will consider together the motion for judgment of nonsuit and the exceptions to the instructions to the jury, as both involve the contentions of the defendant that there is no evidence (1) that the dynamite caps were left on the ground by its employes, (2) that the place where the caps were found is a public place, (3) that the place or caps were likely to attract children, and that if there is evidence of these facts, they, and the other circumstances relied on by the plaintiff, were not sufficient to carry the case to the jury.

We will first reproduce parts of the evidence introduced by the plaintiff, and then undertake to apply it

The plaintiff testified:

"In the fall of 1907 I lived at Cliffside, N. C. I was 11 years old then, and living with my papa and mama. They are here now. They were then living at Cliffside. In November, along about that time, one of my eyes was put plumb out and the other affected so I could hardly see out of it. It was put out with a dynamite cap which I got in front of the post office at Cliffside, at a well. Mama had sent me for the mail from the post office, and I saw some little boys and girls playing over the other side. There were some plank in the well. Some of them were standing looking into it. There were a few plank over the well. Nobody was working at the well at that time. I looked into the well, and there was a box sitting there and some dynamite caps lying down there. That is what they said it was. I picked up one and took it home with me. Two or three were on the ground, brass looking, sorter like cartridge hulls. I thought it was an electric wire about six inches long in it. I did not know what it was. Where I found the cap is a public place 15 to 20 steps from the post office and about 100 yards from the cotton mills and about the same distance from the coal shute. About that time I think there were 700 or 800 hands working in the mill. The mill hands traveled it back and forth to the mill. This mill was on the premises of the Cliffside Mills. I carried the dynamite cap home, and took it out where we had been playing, about 40 steps from the house. I exploded it with a hammer, and it put my eye out. The right eye went plumb out; have not been able to see out of it a bit since. The other eye was hurt. I did not know what it was when it exploded."

J. H. Leverette:

"I remember when Timmons Barnett got his eye hurt at Cliffside. I was working at the mill there, some of the time. I think they had been blasting at the well at the Super's house, Mr. Packard. I do not know whether they were blasting anywhere else on the premises or not. I was helping at the windlass. Kelley Moore, who worked for the company, had me employed. He is outside boss, I think. The company paid me. They used dynamite and dynamite caps to do the blasting. This is the well Timmons Barnett testified to down by the post office. I have seen children playing about there."

G. F. Sisk:

"I heard blasting at the Packard well. I saw dynamite caps in a box. while they were working at the well. Look like a sort of fuse, with a little tin cap on it. That cap was off a little piece, sorter under the edge, where had laid a plank off the well, to go down—two or four feet from the well."

Charley Gardner:

"I remember Timmons Barnett getting hurt. It was in November, I think, 1907. I sawsome dynamite caps in a box at the Packard well before the day the boy was hurt. There was no fence or anything around the well, when I passed there. There were children playing close there, when I passed that day. That was somewhere in the time of a week before the boy was hurt. I had heard some blasting, and there had been blasting there. There was nobody at the top of the well, and I did not think there was anybody in the well."

Ed Wood:

"I saw the Packard well before Timmons Barnett was hurt. They had been blasting at the well when I was along there. I saw some dynamite there. The dynamite was in a box uncovered, three or four feet from the well."

Z. D. Barnett:

"The Packard well was 8 or 10 steps from the path that went down across to the house, and 40 to 50 yards to the company store, 50 or 75 yards from the main entrance to the mill. I saw children around there frequently. I know they played there when they taught school in the building at the well. Six to seven hundred people employed in the mill. I saw dynamite caps in a box under the floor near the well, under the Packard house, in an open box, four to five feet from the well. I was down there two or three times, and saw them all the time I was down there."

Mr. Kelley Moore:

"I am outside man for the Cliffside Mills. The dynamite at Cliffside is in my charge. I have charge of the magazine. In the Packard well, I think the first shot they made they used caps, and they claim one did not go off. I gave them three dynamite and three caps, the first shot that was made. They shot part of them. Two of them went off, and they bored out the other one. That cap was taken back to the magazine. I have been working at Cliffside 14 years. I was the first man that went there. I look over the premises when the work is completed. That is part of my duty to look after what is wasted, or left, and take any dynamite caps lying around there. I observe to see what is left. We moved all of the dirt. It covered the ground from the house, back for 20 feet. Part of that dirt was put in front of the old company store. Nitroglycerin is what furnished the power."

The well referred to was being dug for use in connection with the house...