Westborne Coal Co. v. Willoughby

• Decision Date: 16 November 1915
• Citation: 180 S.W. 322
• Parties: WESTBORNE COAL CO. et al. v. WILLOUGHBY.
• Court: Tennessee Supreme Court

180 S.W. 322

WESTBORNE COAL CO. et al. v. WILLOUGHBY.

Supreme Court of Tennessee.

November 16, 1915.

Appeal from Criminal and Law Court, Campbell County; Xen Hicks, Judge.

Action by G. W. Willoughby, administrator, against the Westborne Coal Company and others. From a judgment dismissing the suit, plaintiff appeals. Affirmed.

Pickle, Turner & Kennerly and Jesse L. Rogers, all of Knoxville, for appellant. Cornick, Frantz, McConnell & Seymour, of Knoxville, and L. H. Carlock, of La Follette, for appellees.

NEIL, C. J.

This action was brought to recover damages for the alleged wrongful death of James Willoughby. There was a judgment for $3,000 damages in the criminal and law court of Campbell county, from which an appeal was prayed to the Court of Civil Appeals. That court held that the trial court should have sustained the plaintiff in error's motion for peremptory instructions, and accordingly dismissed the suit. The case was then brought here by the writ of certiorari.

We think the Court of Civil Appeals reached the correct conclusion. The intestate had been for some time in the employ of the plaintiff in error, but, on the day he was killed, he was not at work, and, while spending his time at the sandhouse of the company, was killed by an explosion of powder in course of conveyance to the mines on one of the coal cars.

The sandhouse, or shed, was a small structure wherein sand was dumped for the purpose of being dried in a stove, through the agency of a boy, whose business it was to dry this sand, and furnish it to the electric motor, which was used in hauling the cars, to enable it to ascend grades. It was also this boy's duty to see that the track at the sandhouse was kept free of sand.

On the day in question, about 7 o'clock in the morning, some 15 or 16 employés of plaintiff in error, in addition to the intestate and one Fred Keplinger, had assembled at the sandhouse, ostensibly for the purpose of going down on what was known as a "trip" train to one of the mines. This trip train was accustomed to taking miners if they applied for transportation by 7 o'clock, either at the sandhouse, or some other suitable place on the line. Keplinger, like the intestate, was not working that day, but his purpose was to go into a mine and remove his tools that were in danger of being swamped by water. He had persuaded intestate to go with him. Why Keplinger and the intestate did not go does not appear. Most of the other persons who had assembled went to the mines. Keplinger, and the intestate, with four or five others, lingered at the sandhouse. While they were there, one of the foremen, Hughes, was also present and talked with the intestate. No objection seems to have been made to the presence of Keplinger and the intestate. We infer that before the accident occurred Hughes had left the sandhouse; however, about six persons were still there.

Shortly before 8 o'clock Mr. Boone, another mine foreman, instructed Floyd Tugles and Pat Berry to load a car with cans of powder to be taken to the mine for use there. The place where the powder was loaded was about 50 yards from the sandhouse. The car had running through it a metal bar, which was attached to the motor when ready to be drawn by the latter. Some of the powder was in wooden buckets and some in metal cans. These were placed indiscriminately in the bottom of the car, some of the metal cans being placed on the metal bar. When the load had been completed, the motor proceeded along the track towards the mine, but when it reached the sandhouse two of the cans of powder exploded, resulting in the killing of the intestate and the wounding of several others of the six present.

What caused the explosion is unknown. An electrical expert was examined, who testified that if the motor, by means of intervening sand on the track, lost contact with the rails, the electricity which had been fed to the motor by the trolley would seek its return to the power house through all of the metal of the attached car, including the metal bar previously mentioned, and in that way would go through the metal wheels of the car and thence back along the track to the power house. He testified that if the isolation of the motor by the sand had occurred, this would be an adequate cause for the explosion by means of the electricity running along the bar, thence to the metal cans, cutting a hole in them, and in that manner setting the powder off.

There is one fact, however, which seems to us an insuperable objection to the suggested solution of the accident; that is, there is no evidence that there was on the track a sufficient quantity of sand to isolate the motor. The evidence simply is that there was sand on the track; how much does not appear. It seems singular also that only two of the cans were exploded. There is no evidence of any hole in the bottom, or other part of either can; possibly, however, this could not have been ascertained after the explosion.

It thus failing to affirmatively appear that there was sufficient sand on the track to effect the result mentioned, it seems this theory of the accident must fail, and there is no other.

However, let us assume that there was sufficient sand for the purpose; still, we think the result would be the same. The intestate was at the sandhouse, not as an employé of the company, since he was not working that day, but for his own purposes, that is, to aid his friend Keplinger, who likewise was not at work. They both, therefore, were mere licensees. The duty of the plaintiff in error to them was simply not to wantonly or intentionally injure them. It is true, as we believe, that if the person in control of the motor knew that there was enough sand on the track at the sandhouse to produce a short circuit, and that dispatching the motor with the powder-laden car would probably produce the result which was caused, the death or injury of the intestate, then the act of sending the motor and the car by the sandhouse under such circumstances would have been such a gross act of negligence as would amount to wantonness, and the equivalent of willful injury. But, before the plaintiff in error could be held liable for such a result on the hypothesis previously stated, we should have to assume that it was its duty, to the licensees, through its servants, to inspect the track before proceeding, and there would also have to be imputed to them knowledge of the fact that the short circuiting would produce the result that is alleged to have taken place; that is, the ignition of the powder by means of the transference of the current from the motor to the car drawn by it. It does not appear that such a phenomenon had ever before occurred at the mines, or that any of defendant's servants had any reason to suspect that such a result might occur from running the motor over said waste left upon the track at the sandhouse. Let it be assumed, though not decided, that the plaintiff in error would be liable to one of its invitees as for negligence on account of an occurrence such as is alleged to have happened, through the direction of its foreman Boone, in ordering the car to be loaded, knowing that it would be transported in the manner stated, and in not...