Hobbs v. Geo. W. Blanchard & Son Co.

• Decision Date: 04 December 1900
• Citation: 74 N.H. 116,65 A. 382
• Parties: HOBBS v. GEO. W. BLANCHARD & SON CO.
• Court: New Hampshire Supreme Court

65 A. 382

74 N.H. 116

HOBBS

v. GEO. W. BLANCHARD & SON CO.

Supreme Court of New Hampshire. Coos.

Dec. 4, 1900.

Exceptions from Superior Court, Coos County; Wallace, Judge.

Case by N. W. Hobbs, administrator of Tommy Corbin, against George W. Blanchard & Son Company, for negligence. Nonsuit ordered on motion of defendant, and plaintiff excepts. Exceptions sustained.

Tommy Corbin, the deceased, was a bright, active boy nearly 14 years old. December 26, 1904, he was killed by an explosion of dynamite at Camp 38, on the premises of the defendants in the unincorporated town of Success, near Berlin. The defendant corporation conducted extensive lumbering operations in Success, covering thousands of acres, and, in the course of their business, saw fit to have entire families living there, many of them with children. There was no highway for horses to the lumber camps, and the company's railroad was the only means of access to the premises. It was the practice for friends to visit at the various camps and ride thereto on the company's trains without paying fare. The company knew of this practice and made no objection thereto. Some four years before the accident the Corbin family had lived on this same property, and their friends had visited them without objection. Only a week before Tommy's death, his parents had walked up the track and taken dinner at one of the camps. The superintendent in charge of the lumbering operations, called the "Walking Boss," was Joe Durant. He had invited the Corbin family, including Tommy, to visit at the lumber camp, and Tommy had spent a night at Camp 38 that very winter. On Christmas Day, 1904, Durant took dinner with the Corbins in Berlin and invited the family to visit at the Blanchard camps. He invited Tommy particularly, and Chivari, boss of Camp 38, said Tommy might sleep in his bed. Tommy went up to Camp 38 on Christinas afternoon and slept with Chivari, who went off in the morning and left the boy abed. The defendants' business required them to use dynamite, which was stored in a safe place some distance from camp. Lacombe, the employs who handled the dynamite, knew that it was dangerous and ought to be stored where people would not come in contact with it. Lacombe saw Tommy in camp the morning of the accident, and when he started to leave camp Tommy followed him. Lacombe sent the boy back, and then proceeded to the place where the dynamite was stored, took five sticks, used two of them, and threw the other three down beside a tree within 14 feet of the door of the office in which Tommy was. Tommy went to the blacksmith shop and got a hammer to use in making a sled. He then went into the office where Lacombe was sitting and asked for nails. At that time the boy had the hammer and barrel staves in his hands. Lacombe said he had no nails, and Tommy left the office. Lacombe knew that the dynamite was lying unprotected within 14 feet of the office, but he took no precautions for Tommy's safety, although he knew the boy was starting out that way with a hammer, looking for nails to make a sled. Four or five minutes later the dynamite exploded, and soon after the boy was found lying dead. There was smoke about the place, and a hole in the ground where the dynamite had been. The dynamite and the hammer had disappeared, with the exception of a small piece of the explosive found near by. Tommy lay nine or ten feet from the place where the dynamite had been left, and about six feet from the office door. His right hand was blown off, his head was injured on one side and the top lifted up, his face was badly disfigured, the front of his body was lacerated and bruised, and his clothing was burned and torn. The plaintiff offered to prove further that dynamite is inherently dangerous and may explode without any jar or concussion; that it is likely to explode with the slightest jar, shock, or concussion; that there was no eyewitness of the accident; and that, so far as known, the Corbin boy had never seen dynamite.

Henry P. Hollis, Thomas H. Madigan, Jr., and Edmund Sullivan, for plaintiff. Drew, Jordan, Shurtleff & Morris and Rich & Marble, for defendants.

WALKER, J. The deceased was not, in a legal sense, the guest of the defendant. He was not present in Camp No. 38 upon the defendant's invitation, either express or implied. The fact that it may be chargeable with knowledge that strangers frequently came upon the premises, and were suffered to remain there without actual objection, is not sufficient evidence that the camp boss was authorized by the defendant to charge it with the legal responsibility of a landowner to his guest, by inviting his friends to come to the camp, not for any benefit or advantage to the defendant in its business, but simply for their enjoyment or pleasure. The boy was evidently there to gratify his curiosity and to have "a good time," and not, in the slightest degree, to promote the interests of the defendant. There is, therefore, no reason upon which to base the inference that the camp boss represented the company, or could legally assume that authority, when he invited the boy to visit the camp. The deceased was not the defendant's invitee. Whether the deceased was technically a trespasser or a bare licensee, it was competent for the jury to...