Scalpino v. Smith

• Decision Date: 06 March 1911
• Citation: 135 S.W. 1000,154 Mo. App. 524
• Parties: SCALPINO v. SMITH.
• Court: Missouri Court of Appeals

135 S.W. 1000

154 Mo. A. 524

SCALPINO v. SMITH.

Kansas City Court of Appeals. Missouri.

March 6, 1911.

Rehearing Denied April 3, 1911.

1. NEGLIGENCE (§ 119) — PLEADING AND PROOF.

When a general allegation of negligence is followed by an enumeration and averment of specific acts of negligence, plaintiff will be confined to the negligence specifically assigned.

2. TORTS (§ 26)—GENERAL ALLEGATION—SPECIFIC CHARGES—ACTIONS EX DELICTO.

Where specific negligence is charged, general allegations used in connection with the specific charge do not admit of proof of negligence other than that specifically stated; but in an action ex delicto, where the real cause is not negligence, but a different tort of which negligence may be an ingredient but is not an essential element, the averment of negligence is immaterial, and the pleader is not held to proof of that which forms no essential cause of action.

3. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR—INSTRUCTIONS.

Where plaintiff was blown out of bed in her home, 1,030 feet from the place where dynamite was stored, in unstable and unprotected buildings in close proximity to a thickly settled neighborhood, plaintiff being entitled to recover irrespective of the degree of care exercised by defendant to avoid explosion, error in charging that plaintiff had failed to prove the negligence specifically alleged by her, but that, if the explosion was due to any negligence of defendant, plaintiff could recover, was not prejudicial.

4. ACTION (§ 37)—MISTAKE AS TO NATURE OF ACTION.

Under Rev. St. 1909, § 1794, requiring plaintiff to give in his petition a plain and concise statement of the facts constituting a cause of action, where the facts alleged are constitutive of a cause in trespass or for maintenance of a nuisance, the court will classify the cause accordingly and will not hold the pleader to a recovery for negligence because he misconceives the real nature of his action.

5. EXPLOSIVES (§ 8)—NEGLIGENCE.

In an action for damages from an explosion of over 2,500 pounds of dynamite stored in an unstable and unprotected building in close proximity to a thickly settled neighborhood, defendant is liable for the injury resulting from an explosion to persons in a building 1,030 feet from the place of storage, though no negligence or want of skill in handling the dynamite was shown.

6. EXPLOSIVES (§ 8)—DAMAGES—EVIDENCE.

In an action for injuries from an explosion, though the evidence showed that plaintiff was hurled out of bed in the direction of the explosion, the question whether her injuries resulted from the explosion was for the jury.

7. EXPLOSIVES (§ 8)—DAMAGES—EVIDENCE— PLEADING.

In an action for injuries from an explosion, where the petition charged that a stove was thrown against plaintiff, while the proof showed that she was thrown against the stove, held not a material variance, as the question was purely incidental; the important fact being that while in her own house she was thrown down and injured by defendant's wrong, and defendant could not have been misled to his detriment.

8. PLEADING (§ 398)—VARIANCE—MATERIALITY.

The prime test in solving the question of the materiality of a variance is the determination of the question of whether or not the inaccurate allegation might have misled the defendant to his detriment.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by Katie Scalpino against Lucius J. Smith. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Eaton, E. H. McVey, and Warner, Dean, McLeod & Timmonds, for appellant. Aleshire, Hardin & Gundlach, for respondent.

JOHNSON, J.

This is an action to recover damages for personal injuries inflicted by an explosion of dynamite. A trial resulted in a verdict and judgment for plaintiff in the sum of $5,000, and the cause is here on the appeal of defendant.

The injury occurred at 7:30 a. m. March 4, 1907, in one of the outer residence districts of Kansas City, Kan. Defendant was a contractor engaged in building a railroad through that part of the city. He was using from 300 to 1,000 pounds of dynamite per day in blasting. The dynamite was hauled from a powder mill some 20 miles away, and defendant generally kept on hand a supply of 3,000 pounds which he stored on nearby vacant land in two small, crude, frame buildings, each about 8 feet long and 6 feet wide. A servant of defendant, Pat Keighan, was the caretaker of the storehouses, and the evidence shows he was experienced in handling dynamite. It appears this explosive freezes at a temperature of 40 degrees Fahrenheit, and that it cannot be used while frozen. The weather was cold enough to freeze the dynamite, and it was Keighan's duty to thaw a supply for the day's use. About 2,500 pounds were stored in one building, and in the other building boxes of dynamite, containing in all perhaps 300 pounds, were placed on shelves built around three sides of the room. There was a small coal stove in the middle of the room, and Keighan built a fire in the stove at 5:30 o'clock that morning. He went to breakfast and on his return rearranged the boxes to facilitate the thawing and put more coal in the stove. Having a headache, he went outside and closed the door after him. In about 10 minutes he looked in and discovered that one of the boxes had caught fire. He carried it and others outside; but, when one blazed up as he was carrying it out on his shovel, he abandoned his task, sought safety in flight, and escaped injury. All the dynamite in the two buildings exploded, and a great hole in the ground marked the place where the buildings had stood. Plaintiff, a young, unmarried woman, living with her parents, was in bed asleep at the time. The house in which she lived was 1,030 feet northwest of the storehouses. She and her mother were sleeping in the same room, but in different beds. Plaintiff's bed was in the northeast corner of the room, and she was lying with her head towards the east. A stove stood near the south wall some five or six feet south of the foot of the bed. Plaintiff's mother was asleep in a bed in the northwest corner of the room. The evidence of plaintiff tends to show that the force of the explosion projected plaintiff out of bed in a southwesterly direction, and that her flight was arrested by her body striking the top of the stove. Plaintiff's mother was thrown out of her bed by the explosion, and both were unconscious for some time. Mrs. Scalpino first recovered consciousness and found her daughter lying on the floor near the south wall. A physician was called, and he found, so he testifies, that plaintiff's principal injuries consisted of a duplicate fracture of the fifth, sixth, and seventh ribs on the left side, of a puncture of the left lung by one of the broken ribs resulting in hemorrhage, and of a severe nervous shock. Traumatic pneumonia followed, and eventually the left lung became completely atrophied. According to this physician, the nervous disorders initiated by the injury constantly have been growing worse and are tending towards a most serious state of nervous breakdown. In addition to these permanent conditions, plaintiff now is suffering from pericarditis, or enlargement and chronic inflammation of the covering of the heart. In short, her evidence depicts her as a physical and nervous wreck with no hope of any amelioration of her condition. Plaintiff introduced as a witness a physician (Dr. Blair) appointed by the court to examine her for the purpose of testifying about her condition. He found that three ribs had been fractured, and we think it is a fair inference from his testimony that plaintiff's nervous condition is very serious. He found that her heart is diseased, but his diagnosis is that the disease is stenosis, or valvular contraction, and that its origin preceded the injury, and that it was not aggravated by it. Opposed to this diagnosis are the opinion of plaintiff's experts to which we have referred and the historical facts adduced by plaintiff's witnesses that before her injury she was in perfect and robust health with no symptoms of organic disease. In such state of proof, we feel compelled, in the consideration of the questions presented by the demurrer to the evidence, to adopt plaintiff's view of her injuries, and therefore to assume that as a direct and natural consequence of her injury she is afflicted with permanent diseases of her lungs, heart, and nervous system.

The petition alleges "that the dynamite and other explosives contained in said shanties were of a dangerous and highly explosive character, and that defendant was negligent in storing such a quantity of such a character of explosives in such unstable and unprotected places and with such proximity to the thickly settled neighborhood in which the same were located; that defendant was guilty of negligence in placing in charge of said dynamite and other...