Katalla Co. v. Johnson

• Citation: 202 F. 353
• Decision Date: 10 February 1913
• Docket Number: 2,158.
• Parties: KATALLA CO. v. JOHNSON.
• Court: U.S. Court of Appeals — Ninth Circuit

202 F. 353

KATALLA CO. v. JOHNSON.

No. 2,158.

United States Court of Appeals, Ninth Circuit.

February 10, 1913

Evidence held to warrant a verdict finding that dynamite furnished by defendant to subcontractors was extrahazardous by reason of its age, and that such extrahazardous condition caused the premature explosion resulting in plaintiff's injury.

This is an action for damages for personal injuries received by the plaintiff while employed as a laborer on the construction work of the Copper River & Northwestern Railroad, near Copper river, Alaska, in which the defendant company was engaged. Plaintiff's injuries were caused by the premature explosion of dynamite furnished by the defendant.

It is alleged in the complaint that the defendant negligently and carelessly furnished the men working with the plaintiff and in his immediate neighborhood dangerous and unsafe defective, and extrahazardous dynamite for use by them in blasting the rock in a tunnel in which they were working that the dynamite furnished was more than two years old, and by reason thereof unsafe to use and liable to explode prematurely, though handled carefully; that the dynamite furnished by the defendant had further been exposed to the air, wind, rain, snow, heat, and cold before it was given to the men for use, thereby rendering it extrahazardous, unsafe to use, and liable to explode, though handled carefully; that the age of said dynamite and its exposure to the elements and its extrahazardous condition by reason thereof were well known to the defendant and unknown to the plaintiff and the men using the dynamite, and to whom it was furnished by the defendant; that the defendant negligently and carelessly failed to inform plaintiff and the men using said dynamite of the extradangerous condition of the same; that while the men working with the plaintiff were loading a hole in the rock with the dynamite so furnished by the defendant, in a proper and careful manner, the dynamite exploded prematurely by reason of its extradangerous, unsafe condition, and without warning and near the place where the plaintiff was working, causing the injuries received by the plaintiff; that the force of the explosion caused a large rock to fall on the plaintiff, by which he was injured cutting his head, fracturing several ribs, and crushing his right foot; that by reason of these injuries plaintiff had been unable to earn any money or do any work, and, it is alleged, would remain a cripple and unable to do any work the remainder of his life. The defendant's answer put in issue the material allegations of the complaint.

The evidence on behalf of the plaintiff tended to establish the allegations of the complaint, and at the conclusion of the trial defendant moved the court to direct a verdict of the jury in favor of the defendant, upon the ground that the testimony was insufficient to entitle plaintiff to recover. This motion was denied. The jury returned a verdict in favor of the plaintiff for $7,500; but on motion of the defendant for a new trial the court held that the evidence did not sustain a verdict for $7,500, giving the plaintiff the option of reducing the verdict to $5,700 or accepting a new trial. Plaintiff thereupon filed his consent that the verdict be reduced to $5,700, and a judgment was accordingly entered for that amount.

W. H. Bogle, Carroll B. Graves, F. T. Merritt, and Lawrence Bogle, all of Seattle, Wash., for plaintiff in error.

Martin J. Lund, of Seattle, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

It appears from the evidence that on May 26, 1910, the plaintiff and others were engaged in tunneling on the line of the railroad, when one Riley, a subcontractor, with another man, went into the tunnel to load dynamite into a hole which had been shot, but had not broken out. Riley's companion cut away the paper wrappers inclosing the dynamite, and Riley placed the dynamite in a hole with a stick. While engaged in this work in the usual way, the dynamite exploded prematurely in the hole, throwing out rock, which fell upon and injured plaintiff. Two witnesses testified that the dynamite being used at the time was in wrappers that were bleached and discolored, and appeared to be covered with an oily substance; that some of the sticks of dynamite had the date of May 15, 1907, printed on them.

I. F. Laucks, an expert mining engineer, testified that when dynamite had been stored for some time in a moist atmosphere the nitroglycerin comes to the surface, either underneath the wrapper, or gets through the wrapper and collects in drops, or sweats, and in that condition it is very dangerous because of the free drops of nitroglycerin. The witness was asked if it would be reasonably safe to give out dynamite two years old, or more, without inspection. His answer was:

'I don't think it would be reasonably safe. I would not do it myself, and I don't believe it would be safe.'

This testimony was not contradicted, and the cause of the explosion was...