Merrill v. Marietta Torpedo Co

• Decision Date: 27 February 1917
• Docket Number: (No. 3115.)
• Parties: MERRILL. v. MARIETTA TORPEDO CO.
• Court: West Virginia Supreme Court

(79 W.Va. 660)
92 S.E. 112

MERRILL.
v.
MARIETTA TORPEDO CO.

(No. 3115.)

Supreme Court of Appeals of West Virginia.

Feb. 27, 1917.

Rehearing Denied April 10, 1917.

(Syllabus by the Court.)[92 S.E. 113]

Error to Circuit Court, Roane County.

Action by Edward P. Merrill against the Marietta Torpedo Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Pendleton, Mathews & Bell, of Point Pleasant, for plaintiff in error.

Ryan & Boggess, of Spencer, and Chas. E. Hogg, of Point Pleasant, for defendant in error.

WILLIAMS, J. Plaintiff was employed by the Ohio Fuel Oil Company as a well driller, and on the 30th of March, 1914, while preparing to measure the depth of the well, preparatory to having it shot, he was injured by an accidental explosion of nitroglycerin, and in an action for the injury recovered a verdict and judgment against the Marietta Torpedo Company for $5,000. By this writ of error it seeks reversal of the judgment.

Defendant is a corporation engaged in manufacturing nitroglycerin and shooting oil wells. It undertook for the Ohio Fuel Oil Company to shoot the well in question, known as "Jacob Reynolds well No. 3." It sent William Norris, one of its employes, to do the work. He arrived at the well in the afternoon of March 30th with 40 quarts of nitroglycerin put up in 8-quart cans. The fluid had to be transferred to another vessel, called a torpedo, lowered to the bottom of the well, and exploded. This process is understood among oil men as "shooting" a well. Norris brought the nitroglycerin to the well in a spring wagon, left it about sixty feet from the engine which operated the drill, unhitched his horses from the wagon, and tied them at a point farther away. It was necessary to measure the depth of the well to ascertain how far to lower the torpedo before exploding it, and plaintiff was assisting in making the necessary preparations to take the measurement when he was injured. The nitroglycerin was frozen, and it was necessary to thaw it out before it could be put into the torpedo. It is proven, and not controverted, that the usual method of thawing it is to immerse, the cans in water, which has first been heated to a temperature of from 120° to 160°. Plaintiff and Clark McClain, his fellow servant, got a barrel at the derrick, which stood some distance away from the engine, and took it to the engine shed, removed a board from the side, of the shed, and placed the barrel so that the bottom rested partly on the floor of the engine shed and partly on a board walk on the outside, but on the same level with the floor. Norris and McClain then got some pieces of steam pipe and connected the engine with the barrel, by means of a joint or ell extending it down to the bottom of the barrel for the purpose of heating the water. While they were thus engaged plaintiff says he filled the barrel with water and went to the derrick. After the pipe was arranged, Norris says, McClain turned the steam into the barrel, and in the meantime he went to his wagon, got two cans of nitroglycerin, and carried them down to the engine and placed them on the ground between the barrel and a large water tank nearby, about three or four feet from the barrel and about two feet from the tank. The cans were about sixteen inches long, and he swears he laid them down, so they could not fall over, and then examined the water. Finding it warm enough, he says he told McClain to cut off the steam and remove the pipe from the barrel, and immediately returned to the wagon to get more nitroglycerin, so that he could thaw it all at one time. Just as he got to the wagon and had picked up two more cans, the explosion occurred at the engine shed. McClain was killed instantly, and plaintiff was severely injured by it. The only eyewitnesses to what

[92 S.E. 114]

occurred about the time of the accident are plaintiff and Norris. They differ materially on the vital point as to whether the nitroglycerin exploded on the ground or in the barrel. According to plaintiff's testimony McClain was at the derrick and returned with him to the engine, after two cans had been placed in the barrel of water and while the steam was still escaping into it. He says when he got back to the engine he saw two cans of nitroglycerin suspended in the barrel by strings or pieces of rope, tied to nails driven in the top of the barrel staves, and noticed the water bubbling up in the barrel; that he went to the flywheel of the engine and was preparing to attach some clamps to it, preparatory to unwinding the measuring line to get the depth of the well; that he had sent McClain around to the tool box, on the opposite side of the engine, to get a wrench; that there was a part of the clamp he did not understand, and just as he was about to call to Norris, who was then at the wagon, to ask him how to use it, the explosion occurred. Mr. Norris is equally positive in his testimony that he did not place the cans in the barrel, but laid them carefully on the ground, and returned to the wagon to get two more cans in order to thaw all of the nitroglycerin at once; that, after he placed the cans on the ground, he examined the water, and, finding it of the proper temperature, he told McClain to cut off the steam and take the pipe out of the barrel; that be had attached the joint of pipe that went down in the barrel with his hands; and that McClain was disconnecting it with his hands as he was returning to the wagon. It is proven, and not denied, that Mr. Norris had had an experience in the dangerous work of shooting wells for a period of four years, and in that time had shot about 400 wells; that before being entrusted with this hazardous work he had had an experience and training in the factory for eight years. His competency, is fully proven, and according to his own testimony he was abundantly cautious on this occasion. But there is no evidence to prove what knowledge or experience, if any, McClain had with respect to the degree of care required in working about so dangerous an agency as nitroglycerin.

The plaintiff's theory is that the cans were immersed in the barrel of cold water and the steam then turned into it, and that...