Hercules Powder Co. v. Wolf

• Decision Date: 10 January 1927
• Docket Number: 26015
• Citation: 110 So. 842,145 Miss. 388
• Court: Mississippi Supreme Court
• Parties: HERCULES POWDER CO. v. WOLF et al. [*]

110 So. 842

145 Miss. 388

HERCULES POWDER CO. v. WOLF et al. ^[*]

No. 26015

Supreme Court of Mississippi

January 10, 1927

Division A

. (Division A.)

1 EXPLOSIVES. Persons storing or using explosives in places accessible to children must use corresponding degree of care.

Persons storing and using dynamite caps and explosives in places which are accessible to and naturally attractive to children, must use a corresponding degree of care to protect children from injury therefrom.

2 EXPLOSIVES. Evidence of other acts in leaving dynamite caps held inadmissible.

In suit for damages for injuries to infant resulting from explosion of dynamite caps alleged to have been left in accessible place by defendant's servants, evidence of other acts of negligence in leaving unexploded dynamite cartridges in stumps held erroneously admitted.

3. NEGLIGENCE. Collateral facts are admissible to show defect has continued for sufficient time to charge master with notice, or to show dangerous character.

Collateral facts are admissible to show defect, where manner of operation has continued for such length of time that master has knowledge, or is charged with notice, or to show character or nature of place.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Separate actions by Joseph Wolf, by his father, as next friend, and by Henry Wolf and wife, against the Hercules Powder Company, which actions were tried together by consent. Judgments for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Hannah & Simrall and T. J. Wills for appellant.

I. Appellant, Hercules Powder Company, was engaged in using the dangerous agency of dynamite. We recognize the rule of law that one using this dangerous agency is held to the highest degree of care. We have no disposition to question the correctness of this principle. This high degree of care is required only as to those to whom a duty is owed.

The appellant owed the appellees no duty and, therefore, there was no negligence and no liability. Granting for the sake of argument that the dynamite caps were found at the place and in the manner claimed by the negro boy, the fact remains that the Hercules Powder Company had a right to leave the caps there and the negro boy had no right to be there or interfere with them.

The principles involved in the "attractive nuisance" and "turntable" cases are the only things that would constitute an exception to the foregoing statement. If the case at bar possessed the elements involved in the "attractive nuisance" and "turntable" cases, then said statement would not be true. But, we submit, that the case at bar does not possess these elements and, therefore, does not fall within the exception, and is subject to the general rule that "a trespasser takes his chance and must look out for himself; and that no duty rests upon the owner to keep his property in such a condition or so guarded that a wrongful intermeddler shall not be exposed to danger." The elements of liability in such cases are set forth in 20 R. C. L., page 83, "Negligence," paragraph 73.

Every one of the elements set forth in Ruling Case Law are absent in the case at bar. And it is not simply a case of the record failing to show the presence of these elements; but the record positively establishes their absence.

If we are correct as to the elements of liability, but mistaken as to their absence from the case at bar, then the case should be reversed and remanded, because of the instructions given for the appellees. We quote Ruling Case Law as our authority for our statement about the elements of liability. The statements in that text are supported by a number of authorities. But these authorities are all from jurisdictions other than Mississippi and we will first consider the decisions of our own supreme court. See Mackey v. City of Vicksburg, 14 Miss. 777, 2 So. 178; Spengler v. Williams, 67 Miss. 1, 6 So. 613; Temple v. McComb, etc., 89 Miss. 1, 42 So. 874; Thompson v. I. C. R. R. Co., 105 Miss. 636, 63 So. 185; McTige v. Johnson, 114 Miss. 862, 75 So. 600; Salter v. Deweese-Gammill Lbr. Co., 137 Miss. 229, 102 So. 268.

The principles that should govern and control the decision of this case have been elaborately and sufficiently dealt with, we think, in the cases above cited. We submit that the Mackey, the Spengler and the Temple cases have no application to the facts in this case for the very reasons pointed out in the case of Thompson v. I. C. R. R. Co., supra. The caps that this little negro boy claims to have found were out in the cut-over pine lands something like a mile from where the negro boy lived. According to the testimony offered on behalf of the plaintiff, there was nothing at the place where the caps were found to suggest that the child ever frequented the place or had any occasion to do so. Therefore, in this case, we have a situation where the place itself afforded no attraction for children and the instrumentality that is alleged to have caused the injury was not of that character or nature that children would easily see or be attracted thereby.

In McTige v. Johnson, the supreme court held the defendant liable because the defendant was charged with notice that the house where the caps were left would again be occupied by a family and that this family would have small children who would naturally play in and about the house. We submit that the reason and the logic announced in that case have no application to the case at bar. On the other hand, we submit that the case at bar falls clearly within the principles announced in Thompson v. I. C. R. R. Co., supra, and in Salter v. Deweese-Gammill Lbr. Co.

II. From an analysis of the instructions complained of, the court will observe that appellees disregarded the two elements of the children's going to the place where the caps were found and the appellant having no notice of it. See extended subject note to Sumner-Cahill v. E. B. and A. L. Stone & Co., 153 Cal. 571, 96 P. 84, 19 L. R. A. (N. S.) 1094, discussing liability under the turntable cases.

III. There is another very sound reason why this case should be reversed and remanded. The appellee sought to recover in this case because the injured boy found a box of dynamite caps in the open woods. The proof shows that the Hercules Powder Company had been dynamiting pine stumps for miles around where these dynamite caps were found. The trial court permitted appellees, over objection of appellant, to introduce a great mass of testimony about unexploded charges of dynamite here, there and yonder in the woods. We submit that this testimony was incompetent on the issues involved, highly prejudicial to the rights of appellant and, therefore, constitutes reversible error.

Appellees are not suing because of charges of dynamite being left in stumps and the testimony is incompetent. It was not negligence for these charges of dynamite to be left in stumps unless the Hercules Powder Company owed some one a duty not to do so. Certainly, this record fails to show any duty to anyone in this respect.

H. Cassedy Holden, also for appellant.

The "attractive nuisance" or "turntable" doctrine constitutes a departure from the general rule that a landowner owes no duty to a trespasser except not to willfully and wantonly injure him. Many courts have severely criticized the doctrine as being too broad in its scope, contrary to sound principles of law, and extremely dangerous because of its elasticity and because it makes possible the fixation of liability in very doubtful cases against landowners. There are several states in which the doctrine has been distinctly and unequivocally repudiated. There are other states where it was rejected from the beginning. It is the tendency of practically all the modern decisions to modify the doctrine and to restrict the dangers of injustice lurking in this rule and have therefore taken pains to see that plaintiffs relying upon the rule are held to strict proof of the essential facts which must appear to make the doctrine applicable. Our own court has shown this attitude of modification and restriction in the two cases of Thompson v. I. C. R. R. Co. and Salter v. Lumber Co., cited in our main brief. This doctrine was first proclaimed in this country in the first of the noted turntable cases styled Sioux City & P. R. Co. v. Stout, 17 Wall (U.S.) 657, 21 L.Ed. 745. The United States supreme court in later cases has practically whittled away the rule as laid down in the Stout case. One of the later opinions from that court is United Zinc & Chemical Co. v. VanBritt et al., 258 U.S. 268, 66 L.Ed. 615, 42 S.Ct. 299. It was held in this case that the owner of unfenced land, on which within one hundred to one hundred twenty feet of a passing highway there is a pool of water apparently clear and pure but in fact poisonous, is not liable for the death of trespassing children who went into the water and died of the poison, where it is at least doubtful whether the water could be seen from any place where the children lawfully were, and there is nothing to show that the pool was what led them to enter the land, and it does not appear that children were in the habit of going to the place. This opinion is most important here. See, also, Hayko v. Colo. & Utah Coal Co. (Colo.), 235 P. 373, which expressly follows the above case.

It will be noted that the supreme court of the United States says that there must be an attractive nuisance in the form of an instrumentality or place and that the attraction must appear to the child before it becomes a trespasser; that the child must be tempted and allured to become a trespasser. If there is nothing on the premises to draw the child thereto and make it a...