Southwest Cotton Co. v. Clements

• Decision Date: 31 March 1923
• Docket Number: Civil 2064
• Parties: SOUTHWEST COTTON COMPANY, Appellant, v. FRED CLEMENTS, an Infant, by JOHN H. FOSTER, Guardian ad Litem, Appellee
• Court: Arizona Supreme Court

213 P. 1005

25 Ariz. 124

SOUTHWEST COTTON COMPANY, Appellant, v. FRED CLEMENTS, an Infant, by JOHN H. FOSTER, Guardian ad Litem, Appellee

Civil No. 2064

Supreme Court of Arizona

March 31, 1923

For opinion on Motion for Rehearing, see infra,, p. 169 215 P. 156.

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Judgment modified and, as so modified, affirmed.

Mr. G P. Nevitt and Mr. J. B. Ogg, for Appellant.

Mr Joseph Hansen and Mr. R. N. French, for Appellee.

OPINION

ROSS, J.

The plaintiff, Fred Clements, by John H. Foster, his guardian ad litem, brought this suit against the Southwest Cotton Company for damages for personal injuries. The act of negligence charged is that the defendant carelessly left exposed upon its premises a dynamite cap which plaintiff later found, and which, while being handled by him, exploded, blowing off the thumb and two fingers of his left hand and injuring the sight of his left eye. The accident happened on November 17, 1920, about one month before plaintiff's twelfth birthday. The defendant interposed to the complaint a general demurrer and the defense of contributory or sole negligence and assumed risk. The answer also contained a general denial. The demurrer was overruled. The trial resulted in a verdict and judgment for plaintiff. Defendant has appealed from the order overruling his motion for new trial and from the judgment.

Defendant asserts that plaintiff neither stated nor made out a cause of action. It also complains of instructions that were given and instructions that were refused. It is indispensable, therefore, that we should get a clear understanding of the facts.

It is shown by the pleadings and evidence that defendant was in November, 1920, in possession and control of a cotton-gin at Marinette, Maricopa county, Arizona, and the grounds and premises adjacent thereto and surrounding it, covering some four or five acres; that running through or alongside these grounds were a railroad track and a public highway, and extending from the railroad to the gin was a spur-track; that defendant owned and had collected on said spur a lot of castings, old worn-out machinery and equipment, and on the 11th or 12th of November, by the use of high explosives described as dynamite, was engaged in breaking up such collection into scrap iron. The defendant after breaking such material loaded it on box-cars and shipped it to San Francisco.

On November 17th plaintiff found, lying near the spur-track and near where the blasting had taken place, a small cap, and placed the same in his pocket. This was about 8 o'clock in the morning. He thought no more of it until the noon recess at school, when he took it out of his pocket, and, thinking it was intended to be used as a pencil guard, attempted to force it on the end of a pencil. It exploded and injured him, as stated above.

The defendant had but recently constructed the cotton-gin, and after it was finished there was considerable scrap lumber left, most of which was gathered and piled in one place near the gin. We cannot tell from the evidence just how far this pile of scrap lumber was from the metal junk pile, but probably some fifty to seventy-five yards. The employees of defendant company, one of whom was plaintiff's stepfather, had been given permission to go upon the premises and take the scrap lumber home for fuel. The plaintiff also had been given the same permission. It was with such permission, and with the personal knowledge of defendant's manager, that the plaintiff went upon the premises to gather fuel. On the 17th of November all of the scrap lumber that had been piled had been carried away, and the plaintiff as he had done before, was picking up scrap lumber around and near the cotton-gin. On this morning he had made some two or three trips collecting the wood scattered upon the premises of defendant. It was while he was so engaged that he found the dynamite cap.

No witness testified to seeing dynamite or dynamite caps in defendant's possession at or near the scrap iron pile at the time of the blasting, or before or after. No one who assisted in breaking up the scrap iron was called as a witness to tell what means were employed to do it with, or what made the noise described by all the witnesses as "blasting."

That some kind of high explosive was used by defendant's employees in breaking up the scrap iron cannot be seriously questioned. Several witnesses, living within a few hundred feet of the place where the blasting was taking place or passing near by at the time, saw the dust rise and heard the explosions. One witness, A. L. Essary, testified:

"I was working as a blacksmith for the Southwest Cotton Company. I know about the pile of junk. It came from around the blacksmith-shop where I worked. It consisted of old plows and gasoline engines, cars, pieces of cars and junk of all sorts. The junk was moved from the blacksmith-shop down on the switch below the gin. It was later blown to pieces by dynamite and shipped out."

This witness further testified that he did not see the dynamite, but that he heard the reports of the blasting.

Another witness, J. W. Shirley, testified:

"Somewhere along about November 10th or 12th I heard some blasting going on around that junk pile. Me and my brother-in-law was going along there about ten o'clock in the morning, and we heard some blasting. We went by there two or three times during the day and noticed the men working there. I judge that a couple of times they were blasting as we passed. Q. How do you know they were blasting? A. Well, we seen the dust flying and everything. I have handled powder myself, and i know about what the sound of dynamite is when I hear it."

F. R. MacPherson, who was the superintendent of the defendant's operations at Marinette and Litchfield at the time, was called as a witness, and stated that he had never seen dynamite at or about the cotton-gin. He did not pretend to say that he was present while the blasting was going on, or that defendant's employees did not have dynamite and dynamite caps. He did say that about that time Maricopa county was building a bridge across the Ague Fria River, and that in that work they used dynamite; that such bridge was located about three-quarters of a mile northwest of the Marinette schoolhouse. Just how close that was to the point where plaintiff found the cap we cannot tell from the record, but it was not in the immediate neighborhood.

Living in and around Marinette at the time were some 700 or 800 human beings engaged in farming, cotton-growing and cotton-picking. There was a good deal of travel on the public highway through Marinette by men with pack burros and wood haulers, and they would frequently camp near the schoolhouse. No campers, however, were allowed on the cotton-gin premises after the gin was constructed there. While there had been a fence around the grounds occupied by the cotton-gin, it had fallen down so that parties could pass in and out without any trouble.

It is the contention of the defendant that the facts disclosed by the above evidence do not make out a case against it; that it is not shown therein that defendant had or left any dynamite cap at the place where plaintiff found the one that injured him. We judge from the defendant's contention that this is based largely upon the absence of direct testimony showing the alleged negligence, and from the further contention that no inference of negligence can be drawn from the proven circumstances in this case.

The evidence introduced at the trial, and accepted by the jury, shows, or tends to show, the following facts: That on or about November 11, 1920, defendant on its premises broke up some old iron; that in doing so it blasted it with dynamite; that five or six days after this blasting, while the plaintiff, with the permission of defendant, was gathering scrap lumber on the premises for fuel, he found near the place the scrap iron had been blasted a dynamite cap which he picked up and put into his pocket; that later, without knowing what it was, plaintiff undertook to force it on the end of his pencil, when it exploded, injuring him very severely; that no one else had been recently, or at all, doing any blasting or exploding any dynamite at or near where plaintiff found the cap.

There is no direct evidence that defendant's employees used dynamite caps to explode dynamite, that is, no witness said he saw dynamite caps in their possession; and, for that matter, no witness said he saw dynamite in their possession, but the testimony that they did explode dynamite is not contradicted.

Peculiar knowledge or possession of evidence carries with it the duty of giving it out if one would avoid the imputation that its concealment naturally reflects. Of course, the defendant knew whether its employees used explosives to break up the scrap iron, as testified to by different witnesses, and it is very improbable that it would have left the statement that it did use such explosives unchallenged, if the fact had been that it did not use them. It offered no evidence to refute the charge and did not cross-examine plaintiff's witnesses, who said the blasting was with dynamite, as to the extent or source of their knowledge. The defendant's attitude at the trial, toward that point, seemed to be:

"You haven't proved, and you can't prove, or you don't know enough to prove, we used dynamite and explosive caps to break up iron, and we don't have to admit or deny it, although we are in complete possession of the facts about the matter."

It appears to us that although plaintiff did not make the clearest proof of the essential fact that defendant did have dynamite caps in breaking up scrap iron, it was...