Pope v. Edward M. Rude Carrier Corp.

• Citation: 138 W.Va. 218,75 S.E.2d 584
• Decision Date: 21 April 1953
• Docket Number: No. CC797,CC797
• Court: Supreme Court of West Virginia
• Parties: POPE, v. EDWARD M. RUDE CARRIER CORP. et al.

Page 584

75 S.E.2d 584

138 W.Va. 218

POPE, v. EDWARD M. RUDE CARRIER CORP. et al.

No. CC797.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1953.

Decided April 21, 1953.

SYLLABUS BY THE COURT.

1. The mere transportation of dynamite, a high explosive, in a motor vehicle upon a public highway by a licensed contract carrier, as the agent of a manufacturer and shipper, does not constitute a nuisance.

2. The doctrine of res ipsa loquitur applies when dynamite, transported in a motor vehicle upon a public highway by a licensed contract carrier as the agent of a manufacturer and shipper, explodes while in their exclusive control and management and causes injury and the explosion is such as does not ordinarily occur if those in control of the dynamite exercise due care.

3. In an action for the recovery of damages for injuries caused by an explosion of dynamite, transported in a motor vehicle upon a public highway by a licensed contract carrier as the agent of a manufacturer and shipper of the dynamite, allegations in a count of the declaration that the defendants, while in the exclusive control and management of the truck transporting the dynamite, at a designated time and place, so negligently and carelessly operated the truck and so negligently and carelessly handled the dynamite that it exploded and injured the plaintiff, that the plaintiff does not know the precise acts or omissions which caused the explosion, and that the explosion would not have ordinarily occurred unless the defendants had failed to exercise due care in the operation, control and management of the truck, sufficiently charge negligence upon the part of the defendants and are sufficient to permit the application of the doctrine of res ipsa loquitur; and a count of a declaration which contains such allegations and is otherwise sufficient is good on demurrer.

4. A licensed contract carrier, in the transportation of high explosives as the agent of a manufacturer and shipper of such explosives, is not an insurer against or absolutely liable for injuries caused by an explosion which occurs during such transportation, which it does not create or maintain a nuisance in such transportation, but is liable only for such injuries as are caused by its negligence.

5. A manufacturer and shipper of high explosives, in the transportation of such explosives by a licensed contract carrier as its agent, is not an insurer against or absolutely liable for injuries caused by an explosion which occurs during such transportation, which it does not create or maintain a nuisance in such transportation, but is liable only for such injuries as are caused by its negligence.

Mason & Mason, James M. Mason, 3d, F. Dean Nichols, Charles Town, for plaintiff.

Steptoe & Johnson, Oscar J. Andre, Clarksburg, Harry H. Byrer, Harry H. Byrer, Jr., Martinsburg, for defendant Edward M. Rude Carrier Corp.

Martin & Seibert, Clarence E. Martin, Clarence E. Martin, Jr., Martinsburg, for E. I. du Pont De Nemours & Co.

HAYMOND, President.

The plaintiff, James Pope, an infant, who sues by Gaynelle Pope, his next friend, instituted this action of trespass on the case in the Circuit Court of Jefferson County to recover from the defendants, Edward M. Rude Carrier Corporation, herein designated as Rude, a licensed contract carrier, and E. I. du Pont de Nemours and Company, herein designated as Du Pont, a manufacturer and shipper of explosives, damages in the sum of $3,000 for injuries alleged to have resulted to the plaintiff from an explosion which occurred while a shipment of dynamite was being transported on a public highway in Jefferson County, West Virginia, on February 1, 1951.

To the declaration which is in three counts each defendant filed a separate written demurrer in which it challenged the sufficiency of the declaration and each of its counts on numerous specified grounds. The circuit court overruled each demurrer and on its own motion certified its rulings to this Court.

The first count of the declaration is based on the theory that the transportation by the defendant Rude, a licensed contract carrier, upon a public highway in Jefferson County, in an interstate journey, of dynamite manufactured and shipped by the defendant Du Pont, constituted a public nuisance and that each of the defendants is liable for personal injuries sustained by the plaintiff and proximately caused by such nuisance.

The first count charges in substance that on February 1, 1951, the defendant Rude, under authority of the Interstate Commerce Commission as a contract carrier of goods and chattels, operated a certain motor vehicle or truck over a public highway in Jefferson County, West Virginia, between the towns of Bolivar and Charles Town; that the defendant Du Pont was engaged in the manufacture, sale and delivery of high explosives from its plants outside of Jefferson County, West Virginia; that the defendant Rude was engaged in the transportation of high explosives for the defendant Du Pont as its agent, servant and employee and as such was acting for and in behalf of the defendant du Pont; that the transportation of such explosives over the highway of the State of West Virginia by the defendant Rude, as the agent, servant and employee of the defendant Du Pont, constituted a public nuisance; that the plaintiff was entitled to immunity from any injury and the defendants Rude and Du Pont owed him the duty of securing him immunity against injury from the maintenance of such nuisance; that notwithstanding the duty owed to the plaintiff by the defendants not to maintain such nuisance the defendants maintained such nuisance as would endanger the plaintiff by engaging in the transportation of such high explosives over the public highways of this State; that while the defendants were so engaged in maintaining such nuisance the motor vehicle or truck used in the transportation of such explosives over a highway of this State adjacent and near to the lands of the plaintiff, on which are located his dwelling and other outbuildings, exploded with great force and violence; and that by means of such explosion the plaintiff sustained severe, painful and permanent injuries to his person.

The second count of the declaration is based on the theory that under the doctrine of res ipsa loquitur the defendants are liable to the plaintiff for the injuries sustained by him as the result of the explosion.

The second count charges in substance that on February 1, 1951, the defendant Rude, under authority of the Interstate Commerce Commission as a contract carrier for hire of goods and chattels, operated a certain motor vehicle or truck over a public highway in Jefferson County, West Virginia, between the towns of Bolivar and Charles Town; that the defendant Du Pont was engaged in the manufacture, sale and delivery of high explosives from its plants outside of Jefferson County, West Virginia; that the defendant Du Pont engaged the defendant Rude, as its agent, servant and employee, to transport a shipment of high explosives from its plant outside the State of West Virginia to a place also outside this State; that the defendant Rude, through its agents, servants and employees, acting within the scope of its employment, operated and drove a heavy automobile truck, owned by it, on a public highway leading from Bolivar through the town of Halltown in Jefferson County, West Virginia, in transporting fourteen tons of dynamite for delivery to purchasers designated by the defendant Du Pont; that all types of high explosives are dangerous instrumentalities but when manufactured, transported, handled and used with care may be employed without necessarily injuring or destroying private property; that it was the duty of the defendant Rude, acting as the agent, servant and employee of the defendant Du Pont, to use reasonable care in the operation of such motor vehicle or truck in transporting such explosives to prevent explosion and injury to the person and the property of the plaintiff; that the defendants by and through their agents, servants and employees, while in exclusive charge and control of such motor vehicle or truck in transporting such explosives, near the town of Halltown, so negligently and carelessly operated such motor vehicle or truck and so negligently and carelessly transported, cared for and handled such high explosives, that they exploded with great force and violence and damaged the property of the plaintiff and caused him to sustain serious injuries to his person; that prior to and at the time of such explosion such motor vehicle or truck and high explosives were under the sole and exclusive management of the defendants, through their agents, servants and employees, acting within the scope of their authority; that plaintiff is without knowledge of the precise acts or omissions which caused such explosion, but that such explosion would not have ordinarily occurred unless the defendants, acting through their agents, servants and employees, had failed to exercise due care in the management, control and operation of such motor vehicle or truck; and that the injury and the damage which resulted to the plaintiff were directly and proximately caused by negligence on the part of the defendants, by their agents, servants and employees while acting within the scope of their authority.

The third and final count of the declaration is based on the theory that in the transportation of the shipment of high explosives the defendants, though not guilty of negligence, are subject to an absolute duty to transport such explosives safely and are absolutely liable for damages for any injury which resulted from an explosion while such explosives were being transported upon a public highway in this State.

The third count charges in substance that on February 1, 1951, the defendant Rude, under authority of the Interstate Commerce Commission as a contract carrier for hire of goods and chattels, operated a...