Ensign-Bickford Co. v. Reeves, 10873.

• Decision Date: 07 March 1938
• Docket Number: No. 10873.,10873.
• Citation: 95 F.2d 190
• Parties: ENSIGN-BICKFORD CO. v. REEVES.
• Court: U.S. Court of Appeals — Eighth Circuit

95 F.2d 190 (1938)

ENSIGN-BICKFORD CO. v. REEVES.

No. 10873.

Circuit Court of Appeals, Eighth Circuit.

March 7, 1938.

Haywood Scott, of Joplin, Mo. (Fred L. Williams, of St. Louis, Mo., John W. Scott, of Joplin, Mo., and Williams, Nelson & English, of St. Louis, Mo., on the brief), for appellant.

William O'Herin and Wayne Ely, both of St. Louis, Mo. (Leahy, Walther, Hecker & Ely, of St. Louis, Mo., on the brief), for appellee.

Before STONE, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

Jake Reeves, the plaintiff in this suit, suffered severe injuries including total loss of sight by the unexpected explosion of a charge of powder while he and a man named Richard Lovell were blasting out rock in a small quarry in St. Louis county, Mo. They had used a fuse known as "Clover Brand Safety Fuse" and Reeves brought this action for damages for his injuries against the fuse manufacturer. He claimed that the fuse was defective and that the manufacturer was negligent in making and putting it out in such defective condition. There was a general verdict in his favor upon the issues submitted to the jury and judgment thereon and the manufacturing company appeals. It complains among other things that there was no evidence to support a verdict for the plaintiff and that the trial court erred in overruling its motion for directed verdict made on that ground at the close of the evidence.

Material allegations of the plaintiff's complaint were that the defendant was engaged in the manufacture and sale of fuse used for the firing of charges of high explosive in blasting operations and in the sale of its product it represented that the fuse had a burning speed of 1 foot per minute; that is, it requires 1 minute of time for 1 foot of said fuse to be burned after being lighted; that plaintiff purchased about 50 feet of the fuse from an authorized dealer and relied on such representations and believed that the fuse was reasonably safe for the purpose for which it was being used; that he was using the same to ignite high explosive with which he was blasting rock, and after preparing a charge and properly attaching a piece of the fuse thereto, he lighted the same and retired to a safe distance and waited about fifteen minutes and no explosion occurred; whereupon he returned to the site where the charge of explosive with the fuse attached was located, at which time the charge of explosive ignited by the fuse exploded and injured the plaintiff; that "defendant negligently and carelessly failed and omitted to inspect same before selling same; that said fuse was unsafe, defective and dangerous in that instead of having a burning speed of approximately one foot per minute as intended by defendant, and as represented and advertised by defendant, was so negligently manufactured and sold that this particular piece of so-called safety fuse had a greatly retarded burning speed which fact was unknown to plaintiff, but was known, or by the exercise of ordinary care would have been known to the defendant."

"Plaintiff further states that defendant knew, or by the exercise of ordinary care would have known that the particular piece of fuse here complained of was defective, which said fact was unknown to plaintiff, and defendant negligently and carelessly failed to warn plaintiff thereof."

"Plaintiff further states that as a direct and proximate result of the aforesaid defective, unsafe and dangerous condition of said safety fuse manufactured and sold by the defendant and the aforesaid explosion, the sight of both of plaintiff's eyes was totally and permanently destroyed."

The defendant answered by general denial.

It appears that at the time of the accident the plaintiff Reeves was 31 years old and was inexperienced in rock blasting. He had worked as helper around a rock quarry the year before and had seen rock blasting done and had been told how to do it, and during the period of about 2 months before the accident he had fired something more than a dozen shots in the old quarry where he was hurt. The owner of the quarry had given his permission and the plaintiff was taking out the rock for himself. He used black powder and fuse, and shortly before the accident he had bought a keg of such powder and 50 feet of Clover Brand Safety Fuse from a merchant who identified the fuse as part of a shipment received by him which had come from a magazine of the Dupont Company at Belleville, Ill. It was of defendant's manufacture and had been kept in good condition.

The plaintiff, Reeves, and Richard Lovell were the only persons present at the time of the accident, and they testified in substance that they used a hammer and drill and drilled a hole about 1½ inches in diameter to the depth of about 3 feet in the solid rock, and having cleaned it out dry, put in 2 inches of powder. Then Reeves cut off a piece of the fuse 3½ feet long from the identified roll, tied a knot at one end of it, cut holes in the knot and inserted it on top of the powder. He poured in additional powder until he had 10 or 12 inches of it in the hole, then while Lovell held the fuse he tamped dry clay on top of the powder with a broomstick. The fuse stuck up about 6 inches above the hole. Reeves split the end of the fuse, lighted it, and went a hundred yards east while Lovell went the same distance west. After waiting 15 minutes they went back to the hole and found the fuse had burned an inch or two and gone out. Reeves cut off the burned portion, split the end of the fuse and lighted it again. After waiting for another 15 minutes they returned and found the same condition as before. After again cutting off the burned portion he relighted the fuse and waited 15 minutes more, when they returned and found that the fuse had burned so that there was only a short piece sticking out where it had burned and gone out. The men then got the load out of the hole by means of the broomstick and water and a brush and having cleaned it out they dried the hole with a rag. Reeves cut the exposed end of the fuse, lighted it and they withdrew for 15 minutes when they returned and found that a few inches of the fuse had burned and it had again gone out. He cut off the burned portion, split the end of the fuse and for the fifth time applied the lighted match and withdrew. As in each of the previous four instances the fuse "smoked and spewed." Lovell had a watch and he announced that 15 minutes was up. Reeves "mosied back" toward the hole and when he got within two or three steps of the hole the explosion occurred and the serious injuries were inflicted upon him. His face and eyes were powder burned and filled with grains of unburned powder. No clay particles were found in his face. After he had lighted the first piece of fuse three times and the second piece once and it went out as it did, the plaintiff "thought there were powder gaps in the fuse which caused it to go out." He had "heard plenty about how people had delayed explosions."

In addition to his own testimony and that of Lovell as to how the accident occurred, plaintiff introduced the testimony of an officer of defendant company to describe its manufacturing processes and methods of inspection. He also introduced the testimony of Mr. A. A. Davis, a contractor, who had done blasting. Mr. Davis knew of some instances of delayed explosions and had seen some fuse smoking and smouldering after it had been thrown out by explosion.

Mr. John Hunter also testified on plaintiff's behalf. He was a mechanical engineer 70 years of age, of extremely varied experiences, who had on occasions been engineer in charge of operations which included blasting where black powder and fuse were used. He had no familiarity with the manufacture of fuse except as he heard the officers of the defendant company describe the process in this case. For the purpose of testifying he made and caused to be made a number of tests and experiments with the particular kind of fuse used by plaintiff and had X-ray pictures made of the unused portion of the roll bought by plaintiff. He said that if the facts stated by the plaintiff as to how the accident happened were assumed to be true the fire must have reached the powder through the fuse, there must have been some defect in the fuse and that it was his opinion that the delayed explosion was caused by powder gaps in the fuse which he had examined; that he had no personal experience with powder gaps in fuse or delayed explosions traceable to that cause and he based his opinion largely on a bulletin of the United States Bureau of Mines issued in 1911, which was prior to the time the defendant began its manufacture of the particular kind of fuse here involved.

The defendant's evidence tended to show that the accident could not have happened as the plaintiff claimed; that an explosion in a tamped hole could not have blown the plaintiff's face and eyes full of unburned powder; that in such an explosion the powder would have been consumed and he would have been struck by clay and rock; that if powder gaps or powder voids are left in Clover Brand Safety Fuse it does not result in hang fires; that the fuse simply refuses to burn beyond the voids. Defendant purposely made and produced in court lengths of the fuse in which there were powder gaps and demonstrated before the jury that the fuse would not burn beyond the gaps. Men who were expert in all matters relating to blasting examined the quarry where the accident occurred and testified that there was no trace of such a blast as plaintiff claimed had injured him, but they found the remains of a hole which they were able to reconstruct with the original pieces of rock that had been split apart but fitted together exactly when reassembled. That hole was of about the depth plaintiff claimed to have drilled and it was evident there had been a "blow out shot" in the hole. That is, there had been an explosion of the charge of powder prematurely or before it had been...