Currelli v. Jackson

• Decision Date: 12 August 1904
• Citation: 58 A. 762,77 Conn. 115
• Court: Connecticut Supreme Court
• Parties: CURRELLI v. JACKSON.

58 A. 762

77 Conn. 115

CURRELLI

v. JACKSON.

Supreme Court of Errors of Connecticut.

Aug. 12, 1904.

Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action by Vito Currelli against Charles S. Jackson. From a judgment for plaintiff for $3,000, defendant appeals. Affirmed.

The complaint, alleges that the defendant was a contractor engaged in the work of repairing certain highways, and that the plaintiff, while in his employ, was injured by the explosion of dynamite which the plaintiff, in the exercise of due care, and under the orders of the defendant, was loading into a hole drilled in a rock for the purpose of blasting; that the dynamite supplied by the defendant, and which the plaintiff was required to use for said purpose, "was in a dangerous and defective condition, in that it was hard, and liable to explode when subjected to pressure"; and that "the condition of said dynamite, as aforesaid, was known to the defendant, who negligently allowed it to remain subject to the use of the plaintiff, and did not give instructions as to its proper use to the plaintiff, who was ignorant and without special skill and experience, nor warn him as to its dangerous condition." The plaintiff offered evidence to prove these facts: The plaintiff is an Italian, but slightly acquainted with the English language. Prior to the accident he had been in the employ of the defendant as a laborer, and had so worked until directed by the defendant to do blasting with dynamite. He had never used dynamite, nor seen it used, until he entered the defendant's employ, several weeks before the accident, and had no knowledge of its nature and qualities, or of its proper use, or of the danger attending its use, and had never used hard dynamite until the time of the accident. On the day of the accident the defendant, who was a contractor engaged in the work of repairing and improving certain highways, directed the plaintiff to set off a blast in a certain rock. The plaintiff, upon going to the box in which the dynamite was kept by the defendant, found that the soft dynamite which had been before provided for his use was gone, and that only frozen dynamite remained. Through an interpreter he informed the defendant that such dynamite could not be compressed and used in the manner he had been instructed to use it, and the defendant told the plaintiff to use the hard dynamite, and that it was all right to use it. The plaintiff thereupon proceeded to use the hard dynamite, and while endeavoring to insert it in the drill hole as he had been instructed by the defendant, the dynamite exploded and injured him as described in the complaint. The dynamite so used by the plaintiff was in a dangerous condition from being frozen, and was for that reason more liable to explode than soft or plastic dynamite. The dangerous condition of such frozen or hard dynamite is well recognized by scientific authorities, and is well known and generally recognized by persons familiar with the nature and qualities of dynamite and the proper way of using it in blasting, and was known, or by the exercise of due care should have been known, by the defendant. The using of frozen dynamite, as the defendant ordered the plaintiff to use it was a highly dangerous operation, as was well known to experienced users of dynamite, and opposed to all sound practice; and the danger of so using it was so great and so well recognized that the defendant ought to have known it in the exercise of ordinary care in the conduct of his business. The plaintiff had no knowledge of the danger attending the use of frozen dynamite, and did not hold himself out to the defendant as possessing experience in the use of dynamite, and the defendant had no reason to believe that the plaintiff had such knowledge. The defendant gave the plaintiff no warning of the danger of using said frozen dynamite. The defendant claimed to have proved that frozen dynamite was less liable to explode, when subjected to a pressure, than soft dynamite; that the defendant did not know, and had never heard, that the use of frozen dynamite by subjecting it to a pressure was dangerous; that such danger, if it existed, was wholly unknown to prudent men of many years' practical experience in the use of dynamite; that the plaintiff was experienced in the use of dynamite for blasting; that he used said hard dynamite contrary to defendant's orders, and without defendant's knowledge; that in loading said blast the plaintiff carelessly used a crowbar in tamping the charge, while knowing that the use of such an instrument was dangerous; and that the plaintiff at the time of the accident was using such dynamite without having obtained a written permit or license therefor from the town clerk or selectmen, as required by statute. The defendant, among other things, requested the court to charge the jury that, to entitle the plaintiff to recover, he must prove that the alleged dangerous condition of the dynamite was known to the defendant; and that, if the plaintiff at the time of the accident was using dynamite without having first obtained a written permit therefor, as required by statute, such use of the dynamite was illegal, and the failure to obtain such permit was a bar to recovery. The jury rendered a verdict for the plaintiff for $3,000.

Samuel Tweedy and Leonard J. Nickerson, for appellant.

Granville Whittlesey, J. Moss Ives, and Eugene C. Dempsey, for appellee.

HALL, J. (after stating the facts). One of the reasons of appeal assigned is that the trial judge erred in instructing the jury that under the allegation of the complaint the plaintiff was not required to prove that the defendant as "matter of fact" knew of the dangerous condition of the dynamite; that the defendant was "chargeable with the knowledge of the ordinarily prudent and careful man in handling a dangerous substance like dynamite, and was chargeable with the knowledge of its varying qualities and dangers under conditions as they are likely to occur in ordinary use, provided, however, that those changes and those dangers are such, and so manifest, that the ordinarily prudent user of such materials should be held to know them"; that "the danger the knowledge of which is chargeable to the defendant whether he knew it or not must be a danger attending the use of dynamite that is recognized and understood in the ordinary conduct of a business like that in which the defendant is engaged as such business is conducted by the ordinarily careful, skillful, and prudent man in the business." The complaint made of this language of the charge is that it authorized the jury to find constructive knowledge by the defendant of the dangerous condition of the dynamite, under the allegation of the complaint that such condition of the dynamite "was known to the defendant, who negligently allowed it to remain subject to the use of the plaintiff, * * * and did not warn him as to its dangerous condition." This objection is apparently based upon the decision of this court in Downs v. Seeley, 76 Conn....