Clark v. E. I. Du Pont de Nemours Powder Co.

• Decision Date: 06 February 1915
• Docket Number: 19262.[d1]
• Parties: CLARK v. E. I. DUPONT DE NEMOURS POWDER CO.
• Court: Kansas Supreme Court

146 P. 320

94 Kan. 268

CLARK v. E. I. DUPONT DE NEMOURS POWDER CO.

No. 19262.^[d1]

Supreme Court of Kansas

February 6, 1915

Syllabus

It is gross negligence for an agent of a powder company, after shooting an oil well with solidified glycerine, to leave a quart of that explosive lying near the well; and the act of a workman, unskilled in the use of such substances, in removing the dangerous article and placing it in the stone fence of a nearby graveyard to prevent injury to himself and his fellow workmen, does not amount to an unrelated, intervening, and efficient cause so as to excuse the powder company from its liability for damages to children who afterwards find the solidified glycerine and are injured by it.

The owner of so inherently dangerous a commodity as solidified glycerine is required to exert the highest degree of care to keep it in close custody to prevent its doing mischief, and that duty never ceases; and such owner is liable for all the natural and probable consequences which flow from any breach of that duty.

The rules heretofore announced by this court for the determination of proximate cause, adhered to.

Appeal from District Court, Chautauqua County.

Action by Steve Clark against E. I. Du Pont de Nemours Powder Company. From judgment for plaintiff, defendant appeals. Affirmed.

J. E. Brooks, of Sedan, and Skidmore & Walker, of Columbus, for appellant.

Pennel & Webster, of Bartlesville, Okl., and Sprowl & Ferrell, of Sedan, for appellee.

OPINION

DAWSON, J.

This is an appeal from an award of $1,632.75 as damages for expenses and loss of services to the appellee on account of injuries received by his two minor sons through an explosion of solidified glycerine which was the property of the appellant. The circumstances leading up to the unfortunate occurrence which gave rise to this lawsuit may be briefly stated: On November 25, 1909, one L. H. Small was engaged in drilling an oil well upon the farm of J. McDowell in Chautauqua county near the home of Steve Clark, the appellee. The appellant, E. I. Du Pont de Nemours Powder Company, is a New Jersey corporation, authorized to do business in Kansas and engaged in the business of manufacture and sale of exploding powders, nitroglycerine, solidified glycerine, and shooting of oil and gas wells with nitroglycerine, solidified glycerine, and other powerful explosives of the nature of dynamite. On said date the agent of the appellant, one Van Gray, came from Bartlesville, Okl., to shoot the well with solidified glycerine, and after this was done he carelessly left near the well about a quart of solidified glycerine. One Joe McDowell, a son of the owner of the farm, and who was in the employ of the contractor who was boring the well, saw the explosive lying near, and fearing that it would cause injury to himself or his fellow workmen who were still busy about the well, took charge of it and carried it home with him at the dinner hour. His mother protested against keeping this dangerous article about the premises, and he immediately took the solidified glycerine to an abandoned graveyard on the McDowell farm at some considerable distance from his home. The graveyard was quite small, containing only three or four bodies, and was surrounded by a stone fence. It had not been used as a burial ground for many years. Young McDowell climbed the stone fence and placed the dynamite in a crevice therein near the ground and laid another stone in front of the recess in the fence, partially covering the explosive.

Neither the powder company nor its agent, Van Gray, ever gave the nitroglycerine any further concern, and it remained in the stone fence of the old graveyard for over two years and until December 23, 1911, when it was found by the children of the appellee and two other boys who were passing that way. One of the sons of the appellee climbed over the stone fence and found the nitroglycerine and handed it to the boys on the outside. They did not know its nature, and, after handling it to some extent, they left it at the graveyard. That evening one of the boys, Fred Clark, spoke to his uncle about it and described it to him, and the uncle ventured the opinion that it was some sort of tallow and not dynamite. The next morning, Sunday, the two Clark boys and another boy were out hunting and returned to the graveyard, and one of them picked up the article and hit it on a rock for the purpose of breaking off a piece to take home. This caused the explosion.

The father grounds his action upon actual damages on account of expenditures for medical and surgical services, medicine, and drugs, for his own service and that of his wife and hired help in nursing and caring for his sons, and for the loss of the services of his sons for five months of each year until they are 21 years of age.

Appellant assigns error on various grounds, but they are all argued together and are conceded to be substantially the same or relating to the same principle , and may be considered as one question.

What was the proximate cause of the injury to plaintiff’s sons?

There can be no doubt of the negligence of the powder company and its agent, Van Gray, in carelessly leaving by the oil well an article so inherently dangerous as solidified glycerine. The highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms. The utmost prudence and caution should be exercised to see that so dangerous an instrumentality does not work mischief to persons or property. The degree of care must be commensurate with the dangerous character of the commodity, and the duty to exercise this highest degree of care in keeping close custody of an article like dynamite never ceases.

In Mattson v. Railroad Co., 95 Minn. 477, 104 N.W. 443 70 L. R. A. 503, 111 Am. St. Rep. 483, 5 Ann. Cas. 498, it was said:

"The degree of care required of persons having the possession and control of dangerous explosives, such as dynamite, is of the highest. The utmost caution must be used to the end that harm may not come to others in coming in contact with them." Syl. par. 2.

This principle is virtually admitted by appellant and its counsel; but in an exhaustive and scholarly brief they attempt to show that the negligence of the agent was not the proximate cause of the damage, and that there was an independent and efficient intervening agency growing out of the act of the young man McDowell, who, to save himself and his fellow workmen from danger, carried the dynamite first to his home and then hid it in the abandoned graveyard; and that the acts of McDowell in removing the solidified glycerine from the place where he found it and in taking it home and hiding it in the old graveyard, where it was found by the children of appellee, innocent though young McDowell’s acts might be, were the proximate cause of the damages which ensued.

The doctrine of remote and proximate cause is well established, and the difficulty in this case does not arise from a dispute as to the principle but as to its application. In 1 Cooley on Torts (3d Ed.) 99, it is said:

"If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote. The chief and sufficient reason for this rule is to be found in the impossibility of tracing consequences through sucessive steps to the remote cause, and the necessity of pausing in the investigation of the chain of events at the point beyond which experience and observation convince us we cannot press our inquiries with safety. To the proximate cause we may usually trace consequences with some degree of assurance; but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile."

Our attention is directed to many cases, including former decisions of this court where the principle laid down by Judge Cooley is recognized. Railway Co. v. Columbia, 65 Kan. 390, 69 P. 338, 58 L. R. A. 399; Gas Co. v. Dabney, 79 Kan. 820, 102 P. 488; Barnett v. Cement Co., 91 Kan. 719, 139 P. 484; Railroad Co. v. Justice, 80 Kan. 10, 101 P. 469; Rodgers v. Railway Co., 75 Kan. 222, 88 P. 885, 10 L. R. A. (N. S.) 658, 121 Am. St. Rep. 416, 12 Ann. Cas. 441; Railway Co. v. Parry, 67 Kan. 515, 73 P. 105.

Running through all the precedents in analogous cases the test appears to be: Is the injury or damage the natural and probable consequence of the original negligence? The mere intrusion of an intervening agency does not always excuse the original wrongdoer. On this subject the Supreme Court of Massachusetts has spoken with such accuracy and precision that its ideas are settled law. Thus in Stone v. Railway Co., 171 Mass. 536, 51 N.E. 1, 41 L. R. A. 794, it was said:

"It cannot, however, be considered that in all cases the intervention even of a responsible and intelligent human being will absolutely exonerate a preceding wrongdoer. Many instances to the contrary have occurred, and these are usually cases where it has been found that it was the duty of the original wrongdoer to anticipate and provide against such intervention, because such intervention was a thing likely to happen in the ordinary course of events. Such was the case of Lane v. Atlantic Works, 111 Mass 136, where it was found by the jury that the meddling of young boys with a loaded truck left in a public street was an act which the defendants ought to have apprehended and provided against, and the verdict for the plaintiffs was allowed to stand. In the carefully...