Twohey v. Fruin

• Decision Date: 18 June 1888
• Parties: TWOHEY v. FRUIN et al.
• Court: Missouri Supreme Court

8 S.W. 784

96 Mo. 104

TWOHEY v. FRUIN et al.

Supreme Court of Missouri.

June 18, 1888.

NEGLIGENCE — EVIDENCE — CASE FOR THE JURY.

In an action for personal injuries caused by the negligence of defendants' foreman in handling giant-powder, there was evidence tending to prove that the foreman placed the can containing the powder, uncovered, over the fire to thaw the powder, in a manner not usually practiced; but whether the can was over the fire at the time of ignition was uncertain, though, if not, it had been removed but five or six feet from the fire for a short time only. Held, that the case should have been submitted to the jury; since there was evidence tending to prove that the explosion resulted from placing the can over the fire.

Error to St. Louis circuit court; ELMER B. ADAMS, Judge.

Action for personal injuries arising from negligence, by William Twohey against Jeremiah Fruin, William H. Swift, and Patrick Bambrick. There was a demurrer to the evidence found in favor of the defendants, and judgment accordingly, to which plaintiff brought error.

Edward Cunningham and Amos R. Taylor, for plaintiff in error. H. D. Wood, for defendant in error.

RAY, J.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of the negligence of defendants. For cause of action the petition alleges that defendants were engaged in the work of excavating a certain cut on the line of the Missouri Pacific Railway, in St. Louis county; that one Alexander White was the agent and foreman of the defendants, having charge of the men in their employ, in digging and blasting earth and stone along the cut; that plaintiff was one of the men working in said cut, and under the control of said foreman; and that while he was working under said White he was injured by the careless, negligent, and reckless act of said White in placing a vessel or can containing blasting powder on and upon a large fire of burning wood, in consequence and by reason whereof said powder took fire and exploded, inflicting upon plaintiff the injury for which he sues.

On the trial, after the close of plaintiff's evidence, the court sustained a demurrer to the evidence, and judgment was rendered for defendants, from which plaintiff has prosecuted his writ of error; and the only question presented by the record is, was there any evidence tending to establish plaintiff's cause of action? The only cause of action alleged is that plaintiff was injured by the negligence of White in placing said vessel containing said powder in and upon said fire, whereby it took fire and exploded and injured him. Three witnesses were examined touching the point, the plaintiff being one of them; and in his evidence he stated whether the cans were over the fire, or close up to the fire, witness could not state. Who put the cans there witness could not state; but witness had seen White putting giant-powder into the cans. "I do not know whether the can in which the powder was was on the fire, or close to it. I did not see White put the powder into the can at this time. I saw him put it there at other times." Christopher Donnelly, another witness, testified that when the powder exploded the can containing it was on the ground five or six feet away from the fire. He says the can was on the fire a couple of minutes. He does not know who took it off, but supposes White did. Saw him put it on. That "about a half hour after I saw him put it on I saw it standing five or six feet from the fire. When the explosion occurred the can containing the water and the can containing the powder were not on the fire." Elsewhere this witness also said: "I was shoveling into a wagon, and when I raised up the shovel I saw the blaze. It might be a couple of feet high above the can. It was the powder that was blazing up, — giant-powder they call it. I had seen the can there a short time before; exactly how long I cannot say, * * * I had seen giant-powder thawed out before. I saw John Scanlan thaw it out. He boiled the water, took it away from the fire, put the giant-powder into it till it got soft. I never saw anybody but Alexander White set powder on fire. * * * The can of powder, when it was blazing, was not on the fire. * * * The can had been on the fire with another can before it was taken off. How long before that I cannot say. I saw the powder blazing right across from me. The fire was made partly of old railroad ties; some pine to start it with. I cannot say whether the wood was blazing or not. When I saw the blaze it was at the powder can. The powder can was on the ground. I cannot say exactly how far from the fire the can was. I guess about five or six feet. There was not much wind. I did not notice whether the fire was blazing. After seeing the blaze I saw it explode in a short time. * * * The can had...