Whaley v. Sloss-Sheffield Steel & Iron Co.

• Decision Date: 21 December 1909
• Citation: 164 Ala. 216,51 So. 419
• Parties: WHALEY v. SLOSS-SHEFFIELD STEEL & IRON CO.
• Court: Alabama Supreme Court

51 So. 419

164 Ala. 216

WHALEY v. SLOSS-SHEFFIELD STEEL & IRON CO.

Supreme Court of Alabama

December 21, 1909

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Action by Lewis Whaley against the Sloss-Sheffield Steel & Iron Company for damages to his property caused by the explosion of dynamite or other explosive substance. From a judgment for defendant, plaintiff appeals. Affirmed.

The charges refused to the plaintiff are as follows: (1) General affirmative charge. (2) "If the jury find from the evidence that the defendant negligently kept large quantities of dynamite and other explosives in a wooden magazine within the incorporated town of North Birmingham, where the same was liable to explode, and they further find from the evidence that by reason of its being so negligently kept it did explode with such violence as to cause damage to plaintiff's storehouse and residence, then they must find for the plaintiff." (3) "If the jury find from the evidence that the defendant kept large quantities of dynamite and dynamite caps in a wooden building or magazine in a thickly settled portion of the town of North Birmingham where there were in proximity many buildings or persons, and that said dynamite and dynamite caps were liable to explode and do serious injury to such persons or property, and that said explosive did explode with such violence as to damage the property of the plaintiff, then the jury must find for the plaintiff." (4) "If the jury find from the evidence that the defendant stored dynamite in large quantities for its use within the incorporated town of North Birmingham, where there were in proximity many buildings and persons, and that said dynamite was liable to explode and do serious injury to such persons or property, and if they further find that it did explode with such force and violence as to damage the property of plaintiff, then the jury must find for the plaintiff."

The following charges were given at the instance of the defendant: (1) "If, from all the evidence in this case the jury find that the cause of the explosion lies wholly within the realm of conjecture and doubt, you must find a verdict in favor of the defendant." (2) "The burden of proof in this case is on the plaintiff to show that the explosion alleged occurred by reason of the negligence of the defendant or its servants or agents." (3) "The burden of proof in this case is not on the defendant to acquit itself of negligence." (4) "The jury is not bound to accept the testimony of any witness in this case as truth, if, after a personal inspection of the matter about which such testimony was given, the jury believe that such testimony is untrue." (5) "The jury is not bound to return a verdict according to the testimony of the witnesses if such testimony is in conflict with what their personal inspection discloses." (6) "If the jury believe from the evidence in the case that the explosion would probably have occurred, regardless of whatever means might have been employed, and that the magazine was located at a proper place, you must find a verdict in favor of the defendant." (7) "In estimating the injury done to plaintiff's storehouse, the jury have a right to consider the condition of such storehouse at the time they saw it." (8) "If you believe from the evidence in the case that the explosion could not have been anticipated nor averted by human foresight, you must find a verdict in favor of the defendant."

Kerr &amp Haley, for appellant.

Tillman, Grubb, Bradley & Morrow, for appellee.

MAYFIELD J.

Appellant sued to recover damages for injury to his storehouse, caused by the explosion of dynamite which the defendant had stored in its magazine, built for such storage purposes, upon its own premises.

The defendant, at the time of the explosion, and for a long time prior thereto, was engaged in the manufacture of iron, and for this purpose it was necessary to blast the lime rock used for flux as well as the iron ore. The defendant's plant was located upon a thin vein of lime rock, which was exposed, or near the surface, there being little earth or drift formation upon the limestone. The furnace was evidently thus located because of the availability and accessibility of the lime rock. To render this rock available for use in the furnaces, it was necessary to blast it, and large quantities of dynamite were necessary for this purpose. After defendant's plant was thus located the town of North Birmingham was built up and incorporated, so as to include its plant, and it continued to operate it thereafter. So there is no contention as to the negligence or wrongful location of the plant, aside from the magazines in which the explosives were stored. On the 2d of May, 1906, there was a violent explosion of this dynamite stored in the magazines, which destroyed a great deal of property in the vicinity, including the plaintiff's store, which is the basis of this action. No specified cause of this explosion was shown. The allegations of some counts of the complaint and the evidence tended to show it was probably the result of different causes. The trial resulted in a verdict and judgment for the defendant, from which the plaintiff appeals.

It is insisted that the court erred in sustaining a demurrer to the fourth count. If this could be said to be true (but we think it was not), it would clearly be without injury, because there were other counts remaining so similar to this that no possible injury could result, for the reason that evidence which would have supported or justified a verdict under that count if in would equally have supported the same verdict or judgment under the other counts. It was, however, insufficient, in that it failed to allege any negligence or actionable wrong in the storing, keeping, or explosion of the dynamite, nor did it allege sufficient facts to show that the storing or keeping thereof was a nuisance per se. As tending to this, it merely alleged the storing or keeping of large quantities of dynamite or other explosives in a thickly settled portion of the city of North Birmingham, in proximity to many buildings and persons. This, without more, is not sufficient. The exact question was decided by this court in the case of Kinney v. Koopman & Gerdes, 116 Ala. 310, 22 So. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119, which reviewed all the authorities on the subject, both in this and other states. Neither do we construe the decision in the case of Rudder v. Koopman & Gerdes, 116 Ala. 332, 22 So. 601, 37 L. R. A. 489, to hold that a count like the one in question is good in all cases against demurrer. It is true that there are expressions in both cases and quotations in both from the same authorities which would seem to support the contention of appellant that this count is sufficient. It is also true that these two cases were against the same defendants, and were each founded or based upon identically the same wrongful act, to wit, the keeping or storing and the explosion of quantities of dynamite powder, and other explosives, within the corporate limits of the town of Cullman, Ala.

The complaints appear to have been drawn by the same attorneys in each case. The complaint in each case consisted of several counts, and demurrers were sustained to some of the counts and overruled as to others. In Kinney's Case a trial was had upon these counts as to which demurrers were overruled which resulted in a verdict for defendant; while in Rudder's Case the demurrer was sustained as to all the counts, and the court declined to allow plaintiff to file others similar to those already passed upon. The plaintiff then declined to plead further, and suffered judgment final. The appeal was taken by the plaintiff in each case to the same term of this court, and in each appeal were raised the questions as to the...