Huffstutler v. Hercules Powder Company, 18675.

• Decision Date: 01 August 1962
• Docket Number: No. 18675.,18675.
• Citation: 305 F.2d 292
• Parties: William Alfred HUFFSTUTLER, Appellant, v. HERCULES POWDER COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

305 F.2d 292 (1962)

William Alfred HUFFSTUTLER, Appellant, v. HERCULES POWDER COMPANY, Appellee.

No. 18675.

United States Court of Appeals Fifth Circuit.

May 30, 1962.

Rehearing Denied August 1, 1962.

Hugo L. Black, Jr., Cooper, Mitch, Black & Crawford, Birmingham, Ala., for appellant.

James R. Forman, Jr., Birmingham, Ala., for appellee.

Before CAMERON and WISDOM, Circuit Judges, and THOMAS, District Judge.

DANIEL HOLCOMBE THOMAS, District Judge.

This is a personal injury action against a manufacturer. After many hours' deliberation and reports to the court that the jury was hopelessly deadlocked, a verdict was finally returned for the plaintiff in the amount of $12,500. Subsequent thereto, a motion was filed by the defendant to set aside the jury verdict, which motion the court granted. The case is here on appeal from the setting aside of the verdict by the trial court.

Plaintiff Huffstutler worked as a coal loader in a wagon mine owned by one Alf Renshaw. His job was to blast coal loose with dynamite at the end of every shift, and to load the loose coal out by means of horse-drawn vehicles on the next shift. On September 27, 1958, the plaintiff had finished loading out his coal somewhat earlier than usual and completed his preparations for blasting. For safety's sake, he could not blast until his fellow workers in the mine were ready with their blasting also. To fill up the waiting time, he headed for an old worked-out room in the mine. This room had been used as a powder room to make up explosives, but was not being used for any purpose at the time. It had been abandoned three to six months before. Sometime prior thereto, Huffstutler had left in this room a blasting cap box loaned to him by Renshaw, which Renshaw had instructed him to pick up and start using.

For light, Huffstutler and the other miners used carbide lamps attached to their caps. The lamp had an open flame with a reflector. Huffstutler entered the abandoned powder room, lighted only by the carbide lamp worn on his cap. The height was not sufficient for a man to stand fully upright. Extending from the left-hand wall of this room, five or six feet in an irregular pile, twelve to twenty-four inches high, was a heap of waste rock called gob. The travel area of this room spread about twelve feet from the foot of the gob to the right-hand wall of the room. Tracks for the mule-drawn rail cars ran down this traveling area and were almost covered by loose coal which had dropped from overloaded rail cars prior thereto.

The plaintiff walked into the room and turned toward the gob. He saw a quart-size fruit jar with some sort of top on it, lying on its side. He saw his cap box behind this fruit jar. Apparently, the jar was lined with rubber; thus Huffstutler could not see inside the jar. At least one of the miners (Dewey Cannon) kept his blasting caps in such fruit jars. There was evidence, slight though it was, tending to show that perhaps other of the miners also kept caps in similar jars. This was known to Huffstutler. As Huffstutler started to pick up the jar with his right hand (apparently with the intention of moving it so as to get the cap box), the jar exploded. As a result, Huffstutler was not only badly but permanently injured. There was evidence that he had sustained brain damage; and the evidence without dispute showed that he lost the sight of one eye, lost at least one finger, sustained a broken arm, and other very painful and serious injuries. He crawled bleeding along the tracks from the room to the main haulage way, where his fellow workers found him. They noticed a small piece of broken copper cap (or what they identified as copper) embedded in his neck. Plaintiff himself later picked fragments of metal (which he identified as pieces of copper cap) out of various parts of his body.

An inspector for the United States Bureau of Mines, investigating this explosion, found on the floor of the room, near where the accident occurred, hunks of zinc-colored stuff (probably from the fruit-jar top). He could not say what type of metal these were. They were much larger than the small fragments of metal which plaintiff picked from his own body.

The blasting caps used by the plaintiff and his fellow miners were bought from Renshaw, the mine owner. They were Hercules caps and were made of copper. The Hercules caps had been used in the mine for a period of only four months prior to the explosion. Du Pont caps were used in the mine before they began using Hercules caps. The Du Pont caps were not copper colored.

The complaint and amendments thereto allege that the plaintiff's injuries resulted from the negligence of Hercules (1) in manufacturing the caps; (2) in failing to warn the plaintiff that the caps would explode prematurely unless handled and/or stored in a certain manner; (3) in manufacturing the caps in such a manner that they would become more sensitive and more likely to explode prematurely as they got older; and (4) in failing to warn the plaintiff that the caps had been manufactured in such a manner that they would become more sensitive and more likely to explode prematurely as they got older.

Hercules stored the kind of caps distributed by Renshaw anywhere from two or three months to two years at its manufacturing plant in Port Ewen, New York; anywhere from one-and-one-half to three months at its Bessemer, Alabama, magazine; and the middle man who delivered the caps to Renshaw stored them approximately thirty days in his magazine. The powder room where the accident occurred had not been used from three to six months.

Plaintiff offered the evidence of F. A. Griffits, professor of chemistry at Maryville College, Maryville, Tennessee, and professor of chemistry during the summer school session at Birmingham-Southern College, Birmingham, Alabama, and Alabama College at Montevallo, Alabama. Dr. Griffits has a Ph.D. in chemistry from the University of Indiana; is familiar with the authoritative literature of explosive chemicals in general and PETN and DDNP in particular. Hercules blasting caps contain powder charges of these two chemicals. Dr. Griffits himself has conducted experiments with related chemicals; has had some experience with blasting caps and chemical compounds of the DDNP family; has familiarized himself with experiments with DDNP and PETN by others; has discussed the properties and qualities of explosive chemicals with fellow scientists from time to time, and has made a study of PETN and DDNP.

Dr. Griffits testified that explosive chemicals in general, and PETN and DDNP in particular, become more unstable, deteriorate and decompose as they get older; that this aging process can make them more sensitive, more dangerous, and easier to set off by energy such as friction, heat, and shock. He said that in his opinion the chemicals in the blasting caps which had (allegedly) exploded in the jar had deteriorated from the aging process; that this deterioration had caused the caps to get in such a critical state that little or no energy would cause them to explode, and that the slight movement of the jar by the plaintiff, acting on the critical state of the caps due to age, had probably caused the explosion.

The defendant offered evidence by equally as well qualified experts who denied that age made PETN and DDNP or any other explosive chemicals or propellants more sensitive, and testified that if age did have any effect on PETN and DDNP and other explosive chemicals or propellants, in general it tended to make them harder to set off.

The evidence on behalf of Hercules showed that some of the miners brought carbide into the mine in glass jars; that carbide and water form acetylene gas, which is highly explosive when improperly handled; that the gas might form within an hour or so and be exploded by an open flame, such as a miner's lamp, or even by movement of the container.

We believe that this sufficiently outlines the facts and there is no necessity for further elaboration. In ruling on the defendant's motion, the trial court wrote an opinion with which we are in thorough accord. We adopt, in affirming this case, the opinion of the trial court which is set out below in full:

"At the conclusion of the evidence in this cause, the defendant moved for a directed verdict. A ruling was reserved on this motion. There was a verdict of $12,500.

"To justify recovery, plaintiff contends that the defendant failed to warn him and others similarly situated that its dynamite caps would become more sensitive with age, and thereby more likely to explode.

"The defendant vigorously denies the charge leveled at it and contends that the verdict is based on speculation pure and simple.

"I have read the transcript of the evidence and have made a careful analysis of same: I have also read the briefs and made a study of the authorities cited to me both on the oral arguments and in the briefs. I shall not attempt to detail the evidence other than to the extent necessary to answer the questions leading to the conclusion justified therefrom.

"1. Were there blasting caps in the jar?

"Dewey Cannon used a fruit jar for the storage of his caps. He seems by the more convincing evidence to have been the only one to use a fruit jar for this purpose, although witness Renshaw...