E.I. Dupont De Nemours Powder Co. v. Duboise

• Decision Date: 04 November 1916
• Docket Number: 2989.
• Citation: 236 F. 690
• Parties: E.I. DUPONT DE NEMOURS POWDER CO. v. DUBOISE.
• Court: U.S. Court of Appeals — Fifth Circuit

236 F. 690

E.I. DUPONT DE NEMOURS POWDER CO. v. DUBOISE.

No. 2989.

Circuit Court, of Appeals Fifth Circuit.

November 4, 1916

Rehearing Denied December 1, 1916.

A. G. &amp E. D. Smith, of Birmingham, Ala., and D. P. Bestor, Jr., of Mobile, Ala., for plaintiff in error.

Gregory L. Smith, of Mobile, Ala., for defendant in error.

Before PARDEE and WALKER, Circuit Judges, and CALL, District Judge.

WALKER Circuit Judge.

While the defendant in error, George Duboise, the plaintiff below acting as an employe of the Newport Turpentine & Rosin Company, engaged in blasting stumps for his employer by the use of dynamite, dynamite caps, and fuse, was preparing to make a blast, he sustained very serious personal injuries as the result of an explosion which occurred in a wooden box, open at the top, in which was carried a number of sticks of dynamite, a box of dynamite caps manufactured and sold by the plaintiff in error, and the fuse. In two of the four counts of the amended complaint, upon which the case went to the jury, it was averred that, while the plaintiff was handling and using said caps in the manner in which they were commonly used and handled for blowing up stumps, some of such caps in the box with others were exploded by the heat generated by the rays of the sun, and the others of said caps in said box were, by such explosion, also exploded. In one of these counts it was charged that said explosions resulted from the defendant's negligently manufacturing said caps or some of them, so that they would explode by the heat generated by the rays of the sun. In the other one of these two counts it was charged that said explosion resulted from the defendant's negligently selling said caps that would be exploded by the heat generated by the sun. In each of the other two counts upon which the case went to the jury there were similar averments as to how the caps were being handled and used, and it was averred that some of them, in the box with others, exploded without any fuse attached thereto having been lighted, and without any other artificial heat being applied thereto, and others of said caps were, by such explosion, also exploded. The charges of negligence of the defendant made in these two counts, respectively, were in one of them that it negligently manufactured, and in the other that it negligently sold, said caps, or some of them, that would explode without any fuse attached thereto being lighted, and without any other artificial heat being applied thereto. Issue was joined on the plea of not guilty to each of the four counts.

It is not doubted that if a person, not a vendee of the defendant, who, without fault on his part, while using in a way they were intended to be used dynamite caps manufactured and sold by the defendant, was injured by the explosion of one or more of them by the heat imparted by the rays of the sun, or without any artificial heat being applied, the defendant would be liable for such injury if it knew, or by the exercise of reasonable care might have known, that such caps as they were when put out by it were capable of being so exploded, and negligently failed to give such notice as reasonably might be expected to warn a user of the caps of the danger of their being exploded in the way mentioned. Waters-Pierce Oil Co. v. Deselms, 212 U.S. 159, 29 Sup.Ct. 270, 53 L.Ed. 453; Keep v. National Tube Co. (C.C.) 154 F. 121; Huset v. J.I. Case Threshing Machine Co., 120 F. 865, 57 C.C.A. 237, 61 L.R.A. 303.

But one so injured, who asserts such a claim, has the burden of proving the negligence charged against the manufacturer or seller. The mere happening of the explosion carries with it no presumption of negligence on the part of the manufacturer or seller. It is an affirmative fact for the injured person to establish that the party sought to be charged with liability has been guilty of negligence. Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Looney v. Metropolitan Railroad Co., 200 U.S. 480, 26 Sup.Ct. 303, 50 L.Ed. 564; Moit v. Illinois Central R....