Bean v. Independent Torpedo Co.

• Decision Date: 09 March 1925
• Docket Number: No. 6807.,6807.
• Citation: 4 F.2d 504
• Parties: BEAN v. INDEPENDENT TORPEDO CO.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 504 (1925)

BEAN v. INDEPENDENT TORPEDO CO.

No. 6807.

Circuit Court of Appeals, Eighth Circuit.

March 9, 1925.

J. E. Williams, of Ardmore, Okl. (George A. Ahern, H. H. Brown, and R. B. Brown, all of Ardmore, Okl., on the brief), for plaintiff in error.

G. C. Spillers, of Tulsa, Okl., for defendant in error.

Before LEWIS, Circuit Judge, and VAN VALKENBURGH and FARIS, District Judges.

VAN VALKENBURGH, District Judge.

Defendant in error, Independent Torpedo Company, hereinafter called the defendant, as it was below, maintained a factory near Ringling, Okl., where it manufactured nitroglycerine for use in its business of developing oil and gas wells in the Southern Oklahoma fields. The decedent, Charles R. Van Dell, a man 41 years of age, was an employee of the defendant, and had charge of its business of shooting oil and gas wells in Southern Oklahoma. Van Dell lived at Healdton, in that state. About one-half mile from Healdton the defendant maintained a magazine for the purpose of storing the nitroglycerine used in its business in that field. The building in which the explosive was stored was a small frame structure 10 or 12 feet long, 8 feet wide, and 8 feet high. On the west wall were two shelves, 2 feet in width; the lower being about 3 feet from the floor and the higher about 4½ feet from the floor. On these shelves was placed the nitroglycerine awaiting use, contained in 10-quart cans. On the floor near the opposite wall from the shelving, and in the northeast corner by the door, was a small oil stove, placed there to prevent the nitroglycerine from freezing. This magazine was in charge of Van Dell, who was the representative of the defendant at this point. He exercised his own judgment as to the amount of the explosive to be kept in this building, the method of storing it, the precautions to be taken to keep it from freezing, and in transporting it to the fields for use in shooting wells.

January 29, 1922, an explosion occurred, which killed Van Dell and a companion and completely destroyed the magazine. There were no witnesses. Fragmentary remains of the dead men were found and identified with some difficulty, but with sufficient certainty. Plaintiff in error, as executor of Van Dell's estate, brings this suit against the employer, assigning as negligence failure to use reasonable care to provide Van Dell with a safe place in which to work, "in causing him to store nitroglycerine in one place in excess of 1,500 pounds, and in placing in such storeroom an open fire, as aforesaid, and by the failure on the part of the defendant to use reasonable care to provide the said Charles R. Van Dell with safe instrumentalities with which to work, and by failing to properly wash the nitroglycerine, as herein set out." That part of the petition, to which reference was thereby made, is in the following language:

"Plaintiff would further respectfully show to the court that, after the acid and glycerine oil of which nitroglycerine is composed have been thoroughly mixed, it becomes necessary to wash the same thoroughly, so that all free acid, and especially all sulphuric acid, contained therein, shall have been removed; that free acids, on coming in contact with cans such as were used by the defendant for storing and conveying its nitroglycerine, will eat holes in such cans and cause decomposition to set in, and thereby render such nitroglycerine much more dangerous than if the same is properly washed and all free acids removed therefrom."

At the close of plaintiff's case the court sustained a demurrer to the evidence, and, under the practice prevailing in that jurisdiction, dismissed the case. Plaintiff in error has not sought to rely upon the res ipsa loquitur doctrine, but has set out the specific negligence charged, as above stated. In such case, the burden is upon the pleader to establish the negligence of which he complains, or at least some one of the assignments thereof. By this statement we are not to be understood as holding, by implication, that the doctrine of res ipsa loquitur would have had application in this case. Fulgham v. Midland Valley R. Co., 181 F. 91, 104 C. C. A. 151, L. R. A. 1917E, 1; Canadian Northern Ry. Co. v. Senske, 201 F. 637, 120 C. C. A. 65; Patton v. Texas & Pac. Ry. Co., 179...