Eves v. Littig Const. Co.
| Decision Date | 08 February 1927 |
| Docket Number | 37374 |
| Citation | 212 N.W. 154,202 Iowa 1338 |
| Parties | HAROLD EVES, Appellee, v. LITTIG CONSTRUCTION COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Scott District Court.--WILLIAM W. SCOTT, Judge.
Action to recover damages for personal injuries received by a boy under ten years of age. The case is stated in the opinion. There was a verdict for plaintiff, and the defendant appeals.
Affirmed.
Glenn D. Kelly, for appellant.
Hamiel & Mather, for appellee.
While Harold Eves was endeavoring to remove the explosive substance from a dynamite cap for the purpose of making a whistle, the cap exploded, and blew the thumb and forefinger off his right hand. This action, prosecuted in the name of his father, as guardian, is to recover damages from the Littig Construction Company, which is charged with having carelessly and negligently left a box containing three dynamite caps on the bank of a deep cut made by the construction company in a public highway, where it was found and the caps removed by Harold on the morning of August 5 1923. The box containing the caps was lying in a depression on the surface of the ground, in plain view of a person walking on the bank of the cut near the fence line. Immediately before discovering the box, Harold was accompanied by two companions, but they had climbed down the embankment, and did not see him pick it up. He showed the box and caps to them, but they did not know what they were, but supposed they were 22-rifle cartridges. Harold threw the box in a near-by culvert, put the caps in his pocket, and took them home with him, a distance of about 7/8 of a mile. In the afternoon, he attempted to remove the contents of the caps, and, while he was in the act of scratching one of them upon a piece of cement, the explosion occurred, with the results stated.
There are two culverts in the highway near the place where the box was found, the nearest about 20 rods distant. In April of the same year, a bridge construction gang used dynamite for blasting trees and stumps in the highway near the culverts. The bridge company completed its work in April or May, and went away. The appellant came later, and used dynamite for blasting trees and stumps in the highway at and near the point where the box was found. After the trees and stumps had been blasted, the elevation was cut down, and the dirt removed therefrom used in making a fill or embankment in the highway. Appellant completed its work the latter part of July. No other construction company or person in the community is known to have possessed explosives of the character in question. The box in which the caps were found was about two inches square, the exterior bright, without paint or lettering of any kind thereon. The identification of the box is one of the close questions of fact in the case.
A motion was made by appellant for a directed verdict, at the close of plaintiff's case, and renewed after both parties had rested.
A large number of the propositions relied upon for reversal are predicated upon the grounds stated in the motion for a directed verdict. The substance of these grounds was that the box containing the caps was not identified as the property of appellant, and that possession thereof was not traced to its foreman or other servants; that the evidence was insufficient to prove that the box was left or placed in the depression where it was found, by appellant, its servants, or employees; that Harold Eves was a trespasser at the time he discovered and picked up the box; that he was guilty of contributory negligence and of wrongfully and unlawfully intermeddling with property that did not belong to him; that no negligence on the part of appellant was shown which was the proximate cause of the accident; and that the result was not one that appellant in the lawful use of explosives was bound to anticipate as reasonably likely to occur. The elevation of the bank at the point where the box was found was approximately twelve feet above the surface of the finished highway. The sides or slopes of the bank were steep, and the boys reached the top by walking close to the fence line on the natural surface of the ground. The incline was gradual, and apparently not difficult of ascent. The foreman of the appellant construction company denied emphatically that he ever saw the tin box containing the caps until it was presented as an exhibit upon the trial. One witness said that he saw the box on the top of the bank near where it was found, while they were working in the highway about ten days prior to August 5th. Other witnesses testified that they saw the foreman have a tin box similar in size and appearance, which he kept part of the time in a tree, and part of the time by a fence inside an inclosure near the highway. The box offered in evidence was found by Harold's father, who was accompanied and directed in his search therefor by one of the small boys who were with Harold on Sunday, in the culvert where it was thrown. He took the box home, and retained it until the time of the trial. In the meantime, it had become rusty, which gave it a somewhat different appearance from what it had when found. An effort is made by appellant to cast doubt upon the identification of the box by showing that the foreman of the bridge company had a small, similar box in which he also kept dynamite caps. The box, however, as stated, was not found near the culvert, but in the immediate vicinity of the place where appellant had, not more than ten days prior, been working. The identification is, of course, not conclusive, but was sufficient to require the submission of the question to the jury. No direct testimony was offered to prove when the box was left upon the bank, or how it came to be abandoned by appellant, if it was left there by its foreman. This was not essential, to make out a case for the jury.
I. The law is well settled and universal that one dealing in, using, or handling explosives must exercise the highest degree of care to prevent injury to property or persons: that is, such care as is commensurate with the nature of the substance and the dangers incident to the handling or use thereof. Lanza v. Le Grand Quarry Co., 124 Iowa 659, 100 N.W. 488.
The tendency of small boys to possess themselves of boxes and other objects of attractive appearance found upon the streets or highways is proverbial, and it was the duty of appellant, in the use and handling of a deadly explosive, to guard them against such perils as might reasonably by foreseen to occur. Whatever might happen that was within the range of prudent human foresight, it was in duty bound to guard against. Its liability, if any, must rest upon some violation of this duty which was the proximate cause of the injury. The duty of one employing explosives to exercise the highest degree of care for the safety of others is everywhere recognized and sustained by authority. The following cases will serve to illustrate both the rule and its application to a great variety of circumstances in which recovery was permitted. Nelson v. McLellan, 31 Wash. 208 (71 P. 747); Clark v. Du Pont De Nemours Powder Co., 94 Kan. 268 (146 P. 320); Cahill v. Stone & Co., 153 Cal. 571 (96 P. 84); Erickson v. Gleason & Co., 145 Minn. 64 (176 N.W. 199); Anderson v. Newport Mining Co., 202 Mich. 204 (168 N.W. 523); O'Brien v. Kroner Hdw. Co., 175 Wis. 238 (185 N.W. 205); Bianki v. Greater American Exposition, 3 Neb. Unoff. 656 (92 N.W. 615); Harriman v. Railway Co., 45 Ohio St. 11 (12 N.E. 451); Akin v. Bradley Engineering & Mach. Co., 48 Wash. 97 (92 P. 903); Olson v. Gill Home Investment Co., 58 Wash. 151 (108 P. 140); Perry v. Rochester Lime Co., 219 N.Y. 60 (113 N.E. 529); Hamblin v. Gano (Miss.), 76 So. 633; Birnbaum v. Philadelphia & R. R. Co., 249 Pa. 238 (94 A. 925); Mathis v. Granger Brick & Tile Co., 85 Wash. 634 (149 P. 3); City of Victor v. Smilanich, 54 Colo. 479 (131 P. 392); Vallency v. Rigillo, 91 N.J.L. 307 (102 A. 348); Barnett v. Cliffside Mills, 167 N.C. 576 (83 S.E. 826); Nicolosi v. Clark, 169 Cal. 746 (147 P. 971); Pittsburg Reduction Co. v. Horton, 87 Ark. 576 (113 S.W. 647).
The following cases will serve as illustrations of the same doctrine applied to other facts and circumstances in which recovery was denied: Bradley v. Thompson, 65 Cal.App. 226 (223 P. 572); Shields v. Costello (Mo. App.), 229 S.W. 411; Chambers v. Milner Coal & R. Co., 143 Ala. 255 (39 So. 170); Eaton v. Moore, 111 Va. 400 (69 S.E. 326); Miller v. Chandler, 163 Ky. 301 (173 S.W. 779); Finkbeiner v. Solomon, 225 Pa. 333 (74 A. 170); Peterson v. Martin, 138 Minn. 195 (164 N.W. 813); Jacobs v. New York, N. H. & H. R. Co., 212 Mass. 96 (98 N.E. 688); Carpenter v. Miller & Son, 232 Pa. 362 (81 A. 439); Pollard v. Oklahoma City R. Co., 36 Okla. 96 (128 P. 300); Bottorff v. South Const. Co., 184 Ind. 221 (110 N.E. 977); Gralka v. Worth Bros. Co., 245 Pa. 467 (91 A. 860); John v. Birmingham Realty Co., 172 Ala. 603 (55 So. 801); Coleman Mining Co. v. Straight Creek Coal & Coke Co., 170 Ky. 157 (185 S.W. 504); Chesapeake & O. R. Co. v. Rogers, 193 Ky. 571 (237 S.W. 18); Bogdon v. Los Angeles & S. L. R. Co., 59 Utah 505 (205 P. 571); Hall v. New York Tel. Co., 214 N.Y. 49 (108 N.E. 182); Hughes v. Boston & M. R. Co., 71 N.H. 279 (51 A. 1070); Bellino v. Columbus Const. Co., 188 Mass. 430 (74 N.E. 684); Stephens v. Stephens, 172 Ky. 780 (189 S.W. 1143); Sowers v. McManus, 214 Pa. 244 (63 A. 601); Travell v. Bannerman, 174 N.Y. 47 (66 N.E. 583).
The whole subject is fully discussed in many of the cited cases, and we shall not attempt any review thereof.
It is true that the top of the bank was much higher than the surface of the highway, and...
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