Mathis v. Granger Brick & Tile Co.

• Court: Washington Supreme Court
• Writing for the Court: ELLIS, J.
• Citation: Mathis v. Granger Brick & Tile Co., 85 Wash. 634, 149 P. 3 (Wash. 1915)
• Decision Date: 29 May 1915
• Docket Number: 12492.
• Parties: MATHIS v. GRANGER BRICK & TILE CO.

149 P. 3

85 Wash. 634

MATHIS v. GRANGER BRICK & TILE CO.

No. 12492.

Supreme Court of Washington

May 29, 1915

Department 2. Appeal from Superior Court, Yakima County; Ralph Kauffman Judge.

Action by Jesse Mathis against the Granger Brick & Tile Company. Judgment of nonsuit, and plaintiff appeals. Reversed and remanded for trial.

David Rankin, N. K. Buck, Jas. O. Cull, and George B. Holden, all of North Yakima, for appellant.

McAulay & Meigs, of North Yakima, for respondent.

ELLIS J.

This is an action for personal injuries. For some years prior to the spring of 1913, the defendant owned and operated a brickyard near the town of Granger, a village of about 500 inhabitants in Yakima county. The yard was located between the Yakima river and a range of hills known as Snipes Mountain. The material for making bricks came from two sources, clay from the clay pit on the side of the mountain several hundred feet from the brickyard and soil from the soil pit immediately adjacent to the yard and machinery. The soil pit was and excavation to a depth of about 30 feet below the level of the yard. Near the yeard were houses for employés, and the town of Granger and the nearest school building were about a half mile distant. The public highway leads south from the town of Granger, passing immediately in front of this plant and near the soil pit. To secure material from the two pits it was necessary to loosen the earth by blasting. This was usually done with giant powder, fuse, and fulminating caps, called in the record 'dynamite caps.' The supply of explosives was usually stored 500 or 600 yards from the plant in the hillside, in an inclosure made by placing a wooden door in front of an excavation that had formerly been used as a part of the clay pit to which we have already referred. The door was never locked, but had a danger sign upon it. In the vicinity of the brickyard petrified wood had been found, and children and others were accustomed to frequent the locality in search of it. Small children were frequently in and about the plant and the soil pit, which was not inclosed with fences or other barriers. There was no evidence that the respondent ever objected to their presence. There was no danger sign anywhere about the plant, except on the door of the machinery building.

On or about the 1st day of April, 1913, Eric Hilton and Ray Martin two boys who were then attending the public school, went over to the brickyard after school, one of them said, looking for lizards in the soil pit. They found in one of the buckets of the elevator, used for hoisting soil from the pit, near the bottom, a partly filled box of dynamite caps. These they took and hid, and on the next day carried some of them to school. There was evidence tending to show that while these two boys and the plaintiff, Jesse Mathis, then a boy about 11 years old, were running and playing together on the school ground one of the caps fell from the pocket of either Ray Martin or Eric Hilton, probably the latter, and was picked up by the plaintiff, who said he saw it before it struck the ground. He carried this cap for a few days in a pocket of his overalls, showing it to no one. He did not know what it was. On Saturday the plaintiff's mother washed these overalls and removed the cap, with a large number of other trinkets, from the pockets, placing them on a desk in the sitting room. The plaintiff, finding it there, picked it up and undertook to pick the substance out of it with a hairpin, when it exploded, mutilating the thumb and three fingers of his left hand and injuring his left ear, resulting in the loss of the fingers and thumb and a permanent impairment of his hearing. Other evidence, so far as necessary, will be discussed in considering the questions presented.

At the close of the plaintiff's evidence the court granted a nonsuit and dismissed the action. The plaintiff appeals. If the judgment of dismissal can be soundly sustained, it must be upon one or all of three grounds which may be stated in logical order as follows: (1) That the evidence was insufficient to establish actionable negligence on the respondent's part. (2) That the boy, Eric Hilton, was an independent, intelligent, intervening, efficient factor, interrupting the chain of causation, and relieving the respondent from liability in any event, in that its negligence was not the proximate cause of the injury. (3) That the appellant's mother was likewise an intervening cause. We shall consider these in their order.

1. The respondent contends that there was no evidence as to how the box of caps came to be in the bucket in the soil pit. Many familiar decisions are cited to the effect that verdicts based upon pure conjecture will not be permitted to stand. In applying this principle the respondent loses sight of the clear distinction between pure conjecture and reasonable inference. Negligence, like any other fact, may be proven by circumstantial evidence. The evidence here shows that respondent had been using explosives in the soil pit and in the clay pit for a number of years. There was no evidence that any one else had used such explosives in that vicinity, except on one occasion in 1911, when dynamite was employed in an effort to raise the body of a person who had been drowned in the Yakima river. Dynamite for that purpose was then secured from the respondent, because it could not be procured elsewhere in the vicinity. In the consideration of the motion for a nonsuit, we must assume that the boys, Eric Hilton and Ray Martin, found the dynamite caps in the respondent's soil pit, the place where they say they found them.

The respondent claims that the tin box containing the caps was never taken into the soil pit, but only so many caps as were necessary to fire the blasts contemplated at a given time. The evidence shows that this was the usual course; but that it was not universal is inferable from the testimony of two witnesses who had been in respondent's employ for several years. One of these testified that he often did the blasting and handled the explosives; that he generally took sufficient caps from the clay pit to the soil pit to do the blasting, but sometimes had caps left, which were 'supposed' to be returned to the clay pit. He recalled one time in particular when the box explosives was left at the soil pit on top of the bank; that he found it there, and left there, and went back to burning brick, and did not know how long it remained. The other testified that the explosives were kept 'a good part of the time' in the clay pit on the hill, and sometimes down in the soil pit under certain waste timbers that were piled there; that the box containing both caps and dynamite was put under 'rubbage and old boards' to keep dry; that, while a passer-by could not see it from above, it could be seen readily from down in the pit; that it was on a bank something like half way from the top of the pit, but could be reached easily by climbing a little way up. When asked how long he had known the caps to remain there he answered:

'Oh, I couldn't tell you. I couldn't answer that question exactly at all. Just the limits of time I don't know.'

The evidence was clear and ample that the explosives were habitually kept in a most careless manner in the clay pit, guarded by nothing more substantial than a wooden door, which was never locked.

In view of all these circumstances, we think that, when it was shown by positive evidence that these boys found the caps on the premises and in the soil pit, where they were habitually used by the respondent's employés, and where they were, from time to time, left for indefinite periods, the evidence indicating that no one in particular was held responsible by the respondent for their care and custody, it was for the jury to say whether or not the caps were left by some of the employés of the respondent where they were found by the boys. In such a case the negligence of the employés is imputed to the master. There can hardly be reasonable doubt that the caps found belonged to the respondent. There can be no doubt that, if they did, they would not have been found there, had the respondent kept its explosives under lock or securely safeguarded, which was its positive, nondelegable duty. There was ample evidence to take the case to the jury on the question of the respondent's negligence.

In Crabb v. Wilkins, 59 Wash. 302, 109 P. 807, a case presenting facts quite similar to this phase of the facts here, the trial court granted a nonsuit on the ground that no negligence was proved. Reversing the judgment, this court said: 'But we think that the court erred in this respect, and that there was sufficient testimony to go to the jury on that proposition, and that, while there was no direct testimony concerning the manner in which these caps found their way to the place where the boys obtained them, it was a reasonable and natural inference, which the jury would be warranted in drawing from the facts proven, that they came there as a result of the work which was going on in that place and in which they were used, and through the agency of the men who were operating the drill.'

See, also, City of Victor v. Smilanich, 54 Colo. 479, 131 P. 392.

2. At the time of the accident Eric Hilton was nearly 14 years old. Ray Martin was about a year younger. Eric knew the caps were dynamite caps, but Ray did not. Their testimony tended to show that neither of them knew...