Gregory v. Lehigh Cement Co.

• Citation: 157 Va. 545
• Case Date: January 14, 1932
• Court: Supreme Court of Virginia

Page 545

157 Va. 545 OLIVER T. GREGORY, BY, ETC.
v.
LEHIGH PORTLAND CEMENT COMPANY. Supreme Court of Virginia, Richmond. January 14, 1932.

Present, Campbell, C.J., and Hudgins, Gregory and Browning, JJ.

1. NEGLIGENCE — Questions of Law and Fact — Where Fair-Minded Men Might Differ — Question for Jury. — That negligence, where there is substantial evidence to show it, and from such evidence fair-minded men may honestly differ as to its existence in the precise case, is a question of fact to be determined by the jury, under proper instructions from the court, is the settled law in this State.

2. EXPLOSIONS AND EXPLOSIVES — Negligence — Employee of Defendant Leaving Dynamite Caps Around After Blasting — Child Finding Caps and Being Injured by Explosion Therefrom — Negligence of Defendant's Employee — Case at Bar. — The instant case was an action by a child for damages for injuries occasioned by the explosion of dynamite caps. There was a verdict for plaintiff which defendant contended was without evidence to support it. There was evidence tending to show that defendant's employee, after blasting for post holes for a line fence between the property of defendant and the property of plaintiff's father, left some of the caps upon the ground, which plaintiff found and, without knowing their dangerous character, placed in a tin box with some marbles, and afterwards not being able to open the box put it on a rock and struck it with a mattock, causing the caps to explode and injure plaintiff. In the light of the facts which were uncontroverted, and in view of the conflict of the testimony relating to disputed facts, as to which the decided weight and preponderance was on the side of the plaintiff, it could not be said that there was no evidence to support the verdict.

Held: That the verdict for plaintiff rested upon substantial evidence, and to hold otherwise would be to usurp the province of the jury, as the evidence certainly made a case in which fair-minded men might differ as to the existence of the negligence charged.

3. NEGLIGENCE — Proximate and Remote Cause — Question of Proximate Cause Not Free from Difficulty — Case at Bar. — In the instant case, an action by plaintiff, a child, for injuries received from an explosion of dynamite caps alleged to have been left carelessly around by defendant's employee, the question of proximate cause of the accident was not free from difficulty. It rarely is in any case. It is one of the nebulous and mystifying creatures of the law.

4. STARE DECISIS — Opinions of Courts — Construction of Opinions. — The opinions of the courts must be read and construed in the light of the facts appearing in the particular case which is the subject of the opinion.

5. NEGLIGENCE — Proximate and Remote Cause — Questions of Law and Fact. — The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science, or legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.

6. NEGLIGENCE — Proximate and Remote Cause — Unforeseen Results. — To constitutute negligence the proximate cause of an injury it is not necessary that the particular injury should have been foreseen. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen them or not.

7. NEGLIGENCE — Children — Care to be Exercised Towards Children. — Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.

8. EXPLOSIONS AND EXPLOSIVES — Degree of Care Required of Person Having Possession of Explosives. — The degree of care required of persons having the possession and control of dangerous explosives, such as firearms or dynamite, is of the highest. The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article.

9. EXPLOSIONS AND EXPLOSIVES — Children — Leaving Explosives in Place Accessible to Children — Proximate and Remote Cause. — A person is generally held liable for any injury resulting from leaving explosives in a place accessible to children, or where they are wont to congregate under circumstances which do not make them wilful trespassers; and the act of a child in causing the explosion is generally held not to be such an intervening cause as will relieve the defendant from liability for a breach of his duty.

10. NEGLIGENCE — Proximate and Remote Cause — Injuries to Child from Explosion of Dynamite Caps Carelessly Left Around by Defendant's Employee — Child Placing Caps in Tin Box which He Afterwards Struck with a Mattock to Open — Case at Bar. — The instant case was an action by a child against defendant for injuries caused by the explosion of dynamite caps which defendant's employee had carelessly left on the ground after blasting for post holes. Plaintiff found three of these caps three or four feet from the fence on the side of a path in the grass. He picked them up and placed them in a tin box with some marbles and placed them with some playthings in a larger box, which he took to a tool house where his father was putting away some tools. The father, without knowing what was in the box, placed it on a shelf. Several months afterwards the boy entered the tool house and remembering the tin box, got it out and as he could not open it put it on a rock and struck it with a mattock, causing the explosion which seriously injured him. The boy at no time knew of the dangerous character of the caps. There was evidence from which it might have been inferred that defendant's employee knew that the boy was accustomed to play around the place where the caps were left. The jury found a verdict for the plaintiff, thereby deciding that the defendant failed in the performance of his duty in regard to the degree of care required in the handling of explosives and that such failure was the proximate cause of the plaintiff's injury.

11. NEGLIGENCE — Proximate and Remote Cause — Injuries to Child from Explosion of Dynamite Caps Carelessly Left Around by Defendant's Employee — Child Placing Caps in Tin Box which He Afterwards Struck with a Mattock to Open — Case at Bar. — The instant case was an action by a child against defendant for injuries caused by the explosion of dynamite caps which defendant's employee had carelessly left on the ground after blasting for post holes. Plaintiff found three of these caps three or four feet from the fence on the side of a path in the grass. He picked them up and placed them in a tin box with some marbles and placed them with some playthings in a larger box, which he took to a tool house where his father was putting away some tools. The father, without knowing what was in the box, placed it on a shelf. Several months afterwards the boy entered the tool house and remembering the tin box got it out and as he could not open it put it on a rock and struck it with a mattock, causing the explosion which seriously injured him.

Held: That the defendant set in motion a dangerous agency, and the subsequent events, culminating in the injury, were such as were consequent and natural and that none of them constituted an independent supervening cause, and therefore the negligence of the defendant in leaving the caps where it did was the proximate cause of the distressing injury.

Error to a judgment of the Circuit Court of Augusta county, in an action of trespass on the case. Judgment for defendant. Plaintiff assigns error.

The opinion states the case.

Curry & Carter and Taylor & Taylor, for the plaintiff in error.

J. M. Perry and Chas. J. Churchman, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

This was an action at law brought in the Circuit Court of Augusta county, in February, 1929, for damages for injuries to an infant, Oliver T. Gregory, occasioned by the explosion of a dynamite cap or caps on February 20, 1928.

The action was instituted by the infant, by his father, as his next friend. The parties will be referred to as they were related in the trial court. We here detail the established facts. The father of the plaintiff owned a small oblong tract of land containing about four acres which adjoined the lands of the defendant. In July, 1925, the line fence between these adjoining landowners was rebuilt and the defendant engaged itself to do this work in which two laborers, servants of the defendant, whose names were Thorpe and Fix, were employed. A number of holes had to be dug for posts upon which the wires were strung, of these a number, estimated from ten to twenty-three, were blasted by means of sticks of dynamite exploded by caps with pieces of fuse attached to them. To do this particular work the defendant sent its powder man, Hildebrand, who first loaded the holes to be blasted and then exploded them all, except perhaps two, at one time. The father of the plaintiff lived on this strip of land near its front end close to a State highway. At some distance to the rear of his dwelling, on the same tract of land, the father owned another dwelling house which was rented and occupied by a man named Ingram and his family, one of whom was Mrs. Sallie

Page 549

Ingram, his mother-in-law, and his infant son about two years old. This house was in a grove which was the playground of the plaintiff, and the house was about twenty feet from the line fence. There was an old tool house...