Merrill v. Marietta Torpedo Co., No. 3115.

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS, J.
• Citation: 79 W.Va. 669
• Docket Number: No. 3115.
• Decision Date: 27 February 1917
• Parties: Merrill v. Marietta Torpedo Co.

79 W.Va. 669

Merrill
v.
Marietta Torpedo Co.

No. 3115.

Supreme Court of Appeals of West Virginia.

Submitted February 20, 1917.
Decided February 27, 1917.

[79 W.Va. 669]

1. Pleading AmendmentNeio Cause of Action.

Amendment of a declaration in trespass by adding thereto additional counts, which aver with greater particularity and precision than was done in the original declaration, the duty of defendant and the negligence causing the injury complained of, and increases the damages, is no departure from the original cause of action, (p. 675).

2. Appeal and Ereor Harmless Error Opinion Evidence.

A party is not prejudiced by the opinion evidence of witnesses, not competent as experts, if their opinions coincide! with the opinions of the experts testifying for the opposite party, (p. 675).

[79 W.Va. 670]

3. Evidence A dmissibility Photo graphs.

Photographs of a building and its surroundings, taken after an explosion of nitro-glycerin causing its wreck, are admissible to show the effect of the explosion, if identified either by the artist who took them or by some other person familiar with the scene, (p. 676).

4. Explosives Evidence Relevancy.

Where it is shown that another person, working nearby, was instantly killed by an explosion that injured plaintiff, it is permissible to prove on what part of the body of deceased the fatal wound appeared, (p. 677).

5. Same Care Required.

The following instruction, applicable to the facts in this case, is approved: "The jury are further instructed that a person in the possession or control of nitro-glycerin designed to be used by him is bound to the highest degree of care to take every reasonable precaution to prevent explosion, (p. 677).

6. Master and Servant Workmen's Compensation Right of Action

Against Third Person.

An employe who receives compensation for an injury from the workmen's compensation fund, is not thereby estopped to sue a third person, not his employer, whose negligence caused Ms injury, (p. 678).

7. Same Injury to Third Person Disobedience of Instructions.

The negligent performance of an act done within the scope of the servant's employment, causing injury to a stranger, renders the master liable. Private rules and instructions, prescribed by the master to govern his servant in the performance of his duty, do not excuse the master, (p. 678),

8. New Trial Newly Discovered Evidence Cumulative Evidence

Impeaching Evidence.

After-discovered evidence which is only cumulative and not of such character as will likely produce a different result on a new trial, or which simply tends to impeach the testimony of a witness, does not warrant setting aside a verdict, (p. 680).

Error to Circuit Court, Roane County.

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

Affirmed.

[79 W.Va. 671]

Pendleton, Mathews & Bell, for plaintiff in error.

Ryan & Boggess and Chas. E. Hogg, for defendant in error.

Williams, Judge:

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 bf 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 nitro-glycerin 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 forty quarts of nitroglycerin put up in eight-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 nitro-glycerin 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 nitro-glycerin 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 thawdng 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

[79 W.Va. 672]

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 nitro-glycerin 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 w^agon 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 eye witnesses to what occurred about the time of the accident are plaintiff and Norris. They differ materially on the vital point as to whether the nitro-glycerin 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 nitro-glycerin 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 fly wheel 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

[79 W.Va. 673]

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 nitro-glycerin 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 he 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 four hundred 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 nitro-glycerin.

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 the action of the steam produced such commotion in the water as to cause the cans to strike against each other or against the sides of the barrel with sufficient force to produce the explosion. On that theory, to prove which there is ample evidence to go to the jury, defendant is liable, for it is clearly proven that such method of thawing nitro-glycerin is unusual and dangerous and, therefore, a negligent way of handling it.

On the other hand, defendant's theory is that its agent Norris was careful and competent; that he was very careful on this occasion and placed the two cans of nitro-glycerin on the ground and did not place them in the barrel; that he told McClain to cut off the steam and disconnect the pipes, a work not attended with any danger; that the explosion was caused by his carelessly dropping...