Gregory v. Lehigh Portland Cement Co
| Decision Date | 14 January 1932 |
| Citation | 162 S.E. 881 |
| Court | Virginia Supreme Court |
| Parties | GREGORY. v. LEHIGH PORTLAND CEMENT CO. |
Rehearing Denied March 31, 1932.
Error to Circuit Court, Augusta County.
Action by Oliver T. Gregory, an infant, by his father, as next friend, against the Lehigh Portland Cement Company. Judgment for defendant, and plaintiff brings error.
Reversed and rendered.
Argued before CAMPBELL, C. J., and HUDGINS, GREGORY, and BROWNING, JJ.
Curry & Carter and Taylor & Taylor, all of Staunton, for plaintiff in error.
J. M. Perry and Chas. J. Churchman, both of Staunton, for defendant in error.
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 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 toolhouse located about fifty feet from the Ingram dwelling. After he set off the blasts, Hildebrand shielded himself behind a tree. On the day the blasting was done, Mrs. Sallie Ingram found a dynamite cap of the same type of those which were used by the defendant at the root of a tree about fourteen feet from the fence, and, not knowing what it was, and therefore ignorant of its danger, she gave it to the infant child, her grandson, to play with. At that time Thorpe came by, and, noticing the child with the cap in its mouth, took it from him and buried it. A short while thereafter, and when the fence still had the appearance of being recently rebuilt, W. N. Gregory, an uncle of the infant plaintiff, found two of the same character of dynamite caps in the grass along the fence about twelve or fourteen inches from it lying between the posts. He disposed of them by throwing them in thebed of a stream near by. About a week after the fence was completed the infant plaintiff found three dynamite caps about three or four feet from the fence on the side of a path in the grass, not all together, but scattered--that is, in different places. He was at that time about ten years old, and had never seen a dynamite cap before. His attention was attracted to them by their bright and shiny appearance. He did not know what they were or what their use was. He had a tin salve box, and he put the dynamite caps and some marbles in it, and closed the box and then placed it, with some other playthings, in a larger grocery box, which he took to the toolhouse, where his father was putting away some old implements and tools for safe-keeping, preparatory to taking his family to Ohio. The father, without knowing what was in the box, placed it on a shelf, and then locked and nailed securely the house, which was not opened until February 20, 1928, the day of the accident. The wife and child, plaintiff, remained away from Virginia for two months, and the father for eight months; the latter keeping the key to the toolhouse with him. After his return, he never had occasion to go into the house until the date mentioned, at which time he was accompanied by the infant plaintiff, who was then about twelve years old. His father opened and went in the house for a chain, and when he came out he closed the door by hooking it. A short while after this the boy needed some wire to mend his little wagon wheel, and he unhooked the door and went in and got the wire, and returned a second time for more wire, when he thought of his marbles and the shiny things, the dangerous character of which he was still ignorant, that he had put in the salve box. He got the box and could not open it, and then he put it on a rock and struck it with a mattock. The caps exploded with great violence, putting out the boy's right eye and fracturing his left knee.
The case was tried in October, 1930, and, after hearing the evidence, and having a view of the premises involved, the jury rendered a verdict for the plaintiff, assessing the damages at $5,000. Subsequently, upon the motion of the defendant, the trial court set aside the verdict and entered judgment for the defendant, with costs against the plaintiff, to which action a writ of error was awarded by this court.
Hildebrand, the defendant's powder man, knew that there was a small child at the Ingram house in the grove which was in close proximity to the fence at the point where the major part of the blasting was done. He testified that he had worked for the defendant company since 1891. The home of the plaintiff, during his entire life, was very near the defendant's plant, and the plaintiff said that the grove was his regular playground, and that other children were accustomed to play there with him. We may fairly assume, then, that Hildebrand knew this.
It will be noted that there are several salient facts which are not controverted and which stand out boldly, as important, in determining the issues here presented:
First. That the defendant was using dynamite caps with fuse in the work of blasting.
Second. That on the day of the blasting, and shortly after the fence was finished, such caps were found on three different occasions by three separate and distinct persons, of whom the plaintiff was one, along the fence line and adjacent thereto.
Third. That the caps picked up by the plaintiff remained where they were placed in the toolhouse until the time of the accident.
Fourth. That the father was not aware of the presence of the caps in the box, and the child plaintiff knew not of their danger at any time from the day they were found to that of the accident.
Fifth. That the plaintiff was a child twelve years old, who, thinking of the playthings, at the time, including the caps, which he had put away, got the box, and, being unable to open it with his hands, struck the box with a mattock, and the caps exploded, causing the very serious injuries complained of.
Sixth. That the caps were found by the plaintiff on his father's land, which was his regular playground.
The theory of the plaintiff was that the defendant, through its employees, handled its dynamite caps, sensitive and highly dangerous explosives, but bright and attractive to children, so carelessly as to leave some of them scattered about the premises; that this was the source of those found and exploded by the plaintiff.
The plaintiff's witness, Thorpe, who was an employee of the defendant, at the time of the blasting, was the only witness to testify to the fact of actually seeing caps scattered or dropped on the ground at the time of the blasting. He was interrogated as follows:
Thus there was positive testimony that Hildebrand did, at one time, leave caps scattered on the ground. That he gathered them all up and took very good care of them after that could only have been the belief of a witness, who was evidently reluctant to place any more blame upon him than a bare recital of the truth at that time would effect. The value of Hildebrand's denial of the truth of this testimony and his own declarations of his blamelessness of conduct in the matter are impaired when it is noted that he further testified that the blasting occurred in May, 1925, when the other testimony on this point was convincingly to the effect that it was in July, 1925. Again Hildebrand testified that he crimped all the caps at one place and carried them, with the fuses attached, to each hole to be blasted, while his colaborers testified with equal positiveness that he crimped each cap at the particular post hole for which it was to be used. The effect of this matter is at once...
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