Shields v. Costello

• Decision Date: 04 April 1921
• Docket Number: NO. 13716.,13716.
• Citation: 229 S.W. 411
• Parties: SHIELDS v. COSTELLO.
• Court: Missouri Court of Appeals

229 S.W. 411

SHIELDS v. COSTELLO.

NO. 13716.

Kansas City Court of Appeals. Missouri.

April 4, 1921.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Action by Robert Shields, by next friend, Amelia M. Shields, against Michael Costello. From judgment for plaintiff, defendant appeals. Reversed.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

John Muir and Thompson & Griswold, all of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for personal injuries. The first trial resulted in a disagreement of the jury, but upon another and the last trial there was a verdict signed by ten jurors in favor of plaintiff in the sum of $3,137, and, defendant has appealed.

Plaintiff was injured by the explosion of a dynamite cap, resulting in the loss of his left eye and a severe and permanent injury to his right hand. Defendant insists that plaintiff was guilty of contributory negligence as a matter of law, and is therefore not entitled to recover. We think that this contention is well taken. Plaintiff's evidence clearly shows that he was guilty of such negligence.

The facts show that defendant was a road contractor engaged in grading a public road in Buchanan county, Mo. The work had been in progress for about a year prior to plaintiff's injury. The grading of the road required the removal of stumps and roots of trees, and from the time the work was started such removal had been done by blasting with dynamite and black powder. Plaintiff was injured on December 18, 1019, and at that time lacked one month of being 12 years of age. He lived in the vicinity of the blasting. He had often been at the scene of the work and watched the manner in which the blasting was done, exhibiting a complete knowledge of the process of the work with the effects and dangers attending the same.

On the day before his injury, returning from school, he secured his rifle and went to the scene of the blasting and watched the men blast a stump. When the fuse was lighted he saw a man, having a box in which dynamite caps were kept, run some distance from the stump, estimated by plaintiff to be about a block, and saw him drop the box and thereafter continue to run some little distance farther. Shortly afterwards an explosion followed blowing the stump out of the ground. Plaintiff was not at the stump nor was he near the box in the road, but later he came along and discovered two dynamite caps and put them in his pocket. He took them to school the next clay, and at the noon recess wrapped one of them up in a piece of paper and set a match to it to explode the cap for the purpose of entertaining himself and his fellow schoolmates. He placed it on a sawdust pile near the schoolhouse, put loose dirt around the cap, and lighted the paper, but the cap did not explode. Deciding that the cap was no good, he returned and removed the cap, laid it aside, and wrapped the second one in a piece of paper, placed dirt around it, and lighted it as he had the first and picked up the first cap and put it in his pocket. He then went behind the school house with the other children, waiting for the cap to explode. He testified that—

"It never went off, and I thought it wasn't any good so I run back, and started to pick it up and just as I started to get it it exploded."

It exploded as he put his right hand over it. These caps were about as large around as a lead pencil and as long as a 15 year old boy's little finger.

Plaintiff possessed a 22 rifle and had been hunting With it a little over a year prior to the accident. He went hunting for rabbits and squirrels nearly every evening before the accident, He used 22 short cartridges. About a week prior to the time he was injured plaintiff at his home removed the lead from two cartridges, wrapped each in a piece of paper, and placed dirt around it and lighted it, resulting in an explosion which made a flash and considerable smoke, but very little noise, and did not blow the dirt away. The day before the injury he took one or two of these cartridges to school and removed the lead and discharged them in the same manner that he had those at home. The day of his injury and prior thereto at the school he had exploded in this manner 12 or 13 cartridges. He testified that he did not stand near the cartridges when they went off because he was afraid they might hurt him, and he told the other children to get away or stand back for the same reason. When he exploded the shells the day before his injury he told the children that he was going to get "something to shoot." He denied that he had in mind dynamite caps, testifying that he had in mind that he was going to get more 22 cartridges. Some of the school children testified for the defendant that plaintiff was exploding dynamite caps a week before his injury, had a handful the morning of the injury, and exploded one before school convened. He denied this, however. He displayed full knowledge as to where defendant's employés stored the caps and how they were handled by them.

He had watched the men on the work blasting. He testified that he had seen the men use dynamite caps for several months; that they would drill a hole underneath the stump and place dynamite therein; that they put a cap on the end of a fuse that was put in with the dynamite; that they tamped dirt around the fuse, which had the appearance of a little round cord, and when they got ready to light the fuse would warn everybody away, then light the fuse and run, when an explosion would take place. The day before his injury he went to the scene of the blasting and found lying on the road some grains of black powder, each being as large as a grain of corn. He put these in his pocket and took them over to the schoolhouse and exploded them in the same manner that he afterwards exploded the dynamite cap.

He testified that he knew that the dynamite caps would "shoot off," but that he did not know what would be the extent of the explosion, but thought that he would light one to see what it would do. He said that he knew that dynamite was a high explosive, but he thought that it took dynamite to blow up the stumps, and that he did not know the force of an explosion of a dynamite cap. He...