French v. Center Creek Powder Mfg. Co.

• Decision Date: 07 July 1913
• Citation: 158 S.W. 723
• Parties: FRENCH v. CENTER CREEK POWDER MFG. CO.
• Court: Missouri Court of Appeals

158 S.W. 723

FRENCH v. CENTER CREEK POWDER MFG. CO.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. PLEADING (§ 388) — ISSUES, PROOF, AND VARIANCE.

A plaintiff who alleges and attempts to prove more than is necessary to authorize a recovery may recover where his petition states a cause of action which is sustained by evidence, though the unnecessary portions of the petition are not established.

2. EXPLOSIVES (§ 8) — PRIVATE NUISANCES — LIABILITY.

One who stores on his premises a large quantity of nitroglycerin thereby creates a nuisance per se so far as it affects those in the zone of danger from an explosion, regardless of the degree of care exercised by him, and, where an explosion occurs and injury results to another having no contractual relations with him, he is liable for the damages naturally resulting therefrom.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Viola French against the Center Creek Powder Manufacturing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Shannon & Phelps, of Carthage, for appellant. J. W. McAntire, of Joplin, for respondent.

FARRINGTON, J.

This was a suit for personal injuries alleged to have been sustained by Viola French, the plaintiff, as the result of an explosion of defendant's powder manufacturing plant in Jasper county. The petition charges that on or about the 13th day of February, 1912, the defendant carelessly and negligently caused and permitted a large quantity of nitroglycerin, dynamite, and other explosives to explode at and in said powder manufacturing plant. It is then alleged that the explosion was such as to shake plaintiff's house in such a way as to cause a picture which was hanging on the wall to fall upon plaintiff, who was confined to her bed by reason of illness, injuring her, etc. The answer admitted the incorporation of the defendant, but denied each and every other allegation of plaintiff's petition.

The evidence of the plaintiff consisted of her own testimony detailing the extent of her injuries and of the testimony of Fred Bernard, an employé of the defendant who was on the premises a few minutes before the explosion occurred. His testimony, and that of witness Seibert, another employé of defendant who testified in its behalf, coupled with the testimony of certain officers of the company who were called as its witnesses, disclosed the manner in which the powder plant was operated. It is undisputed that the building in question was kept locked against strangers; that the company provided special clothing and rubber sole shoes for employés while at work in this building; that no matches were allowed on the premises; that the bearings on the machinery in this building were inspected and kept well oiled, and in fact had been oiled only a short time before the explosion occurred; that the fire which caused the explosion was discovered on the top (third) floor of the building by witness Seibert, one of the two men who were in the building at the time. This witness, who testified for the defendant, had worked at defendant's plant for several months, but on the morning the explosion in question occurred he was working for the first time on the third floor, engaged in putting "dry dopes" (consisting of nitrate of soda, wood pulp, wheat flour, sulphur, and dry material of that character) through a chute into a screen on the second floor from which they were conveyed through a chute to a large mixing bowl on the first floor, and in putting nitrate of ammonia in a shaking or moving screen which operated just above the floor of the top story, and beating the lumps with a paddle or club so that they would be reduced in size and go through the screen and down the chute to the mixing bowl. All these materials kept on the third floor, according to the evidence, were nonexplosive. Bernard, the only other man in the building immediately preceding the explosion, was on the first floor. The nitroglycerin was stored in lead tanks on the second floor. Bernard and Seibert had prepared two mixings that morning and were preparing a third. It is not claimed that lightning or any other act of God caused the explosion. Bernard testified that the machinery was well oiled, and that, even if it had not been, it had not run long enough that morning to get hot from friction. No fire was in or about the building so far as any of the witnesses knew. Bernard, plaintiff's witness, testified that he had worked in powder plants for 12 years, and that defendant's plant was operated with the highest degree of care, and that the appliances were better arranged for the safety of employés than any he had ever worked in. The officers of the company testified that other explosions had occurred at the plant and that from each of them they had learned something and immediately remedied the particular defect, but that they were entirely at a loss to know what caused the fire that produced this explosion. Seibert testified that he was beating the lumps of nitrate of ammonia and noticed a blue smoke coming up from the corner of the screen. He went down to get Bernard and by the time they returned there was a blaze all over the screen in which the ammonia had been placed. They fled and when 600 feet from the building the explosion occurred. The building was demolished.

There is no evidence in the record of the commission of any act or the omission of any duty by the defendant or its servants which can be pointed to as the probable cause of the fire and explosion; and, unless a presumption of negligence is raised by the mere occurrence of the explosion (from the application of the res ipsa loquitur rule), the plaintiff is not entitled to recover in her action, provided negligence is a necessary element of her cause of action. The case was tried by both parties on the theory that proof of negligence was essential to plaintiff's recovery; the plaintiff contending that a presumption of negligence arose from the mere happening of the explosion under the rule of res ipsa loquitur and thus made out her prima facie case, and the defendant contending that the res ipsa loquitur doctrine does not apply and that the plaintiff must show by positive proof some acts of negligence on the part of the defendant or its servants before a recovery would be justified. The court in refusing certain instructions requested by the defendant clearly required the jury to find, before they could return a verdict for the plaintiff, that she had shown by a preponderance of the evidence that defendant had been guilty of negligence, and...