Wiseman v. Terry

• Decision Date: 01 March 1932
• Docket Number: (No. 6973)
• Citation: 111 W.Va. 620
• Court: West Virginia Supreme Court
• Parties: Della Wiseman, Administratrix, Etc. v. A. P. Terry

111 W.Va. 620

Della Wiseman, Administratrix, Etc.

v.A. P. Terry

(No. 6973)

Supreme Court of Appeals of West Virginia.

Submitted February 23, 1932.

Decided March 1, 1932.

1. Pleading

Evidence and instructions not responsive to the issues should be denied.

2. Evidence

"In a trial of a negligence case, it is not error to admit as evidence, with a proper caution by the court as to its purpose, a map of the place of the injury, showing approximately the location and relations of the various objects and distances in figures, obtained by actual measurement, but not susceptible to verification by scaling the map." (Prok v. Ry. Co., 75 W. Va. 697, 84 S. E. 568.)

3. Negligence

"An owner or proprietor of a dangerous instrumentality must exercise reasonable care to avoid injury to a trespassing child whose presence at the time and place of danger was either known to the proprietor, or might reasonably have been anticipated." (Adams v. Gasoline Co., 109 W. Va. 631, 56 S. E. 63.)

4. Trial

"While not fatally erroneous if not misleading, an instruction embodying a mere abstract proposition of law, without direction or suggestion as to its application to the controverted facts in evidence, is improper and should not be given. If misleading, it will constitute reversible error." (Frank v. Traction Company, 75 W. Va. 364, 83 S. E. 1009.)

Error to Circuit Court, Monroe County.

Action by Delia Wiseman, as administratrix, etc., against A. P. Terry. Judgment in favor of the defendant, and the plaintiff brings error.

Judgment reversed, verdict set aside, and a new trial awarded.

Alexander Falconer, for plaintiff in error.

W. P. Parsons and W. B. Kegley, and W. M. La Fon, for defendant in error.

Lively, Judge:

Delia Wiseman, as administratrix of the estate of her eightyear-old son, Joseph, sued defendant for damages for his death which resulted from an explosion of dynamite in one of the houses used by defendant in operating a rock quarry.

The verdict was for defendant on which the court entered judgment of nil capiat, and plaintiff prosecutes error.

The declaration charges, in substance, that defendant at the time of the explosion was operating a rock quarry, and in connection therewith owned and used a building for the storage of dynamite and detonator caps, and as a blacksmith shop; that it was the duty of one of the employees to prepare, in the building, the detonator caps for blasting at the quarry, and that he was performing that duty at the time of the accident; that another employee, a blacksmith, was, at the same time, performing his duties as blacksmith in a compartment of the building; that for a long time prior to the accident, the deceased boy was in the habit of playing and loitering near the building with the permission and acquiescense of defendant; that it was the duty of defendant to use due care and caution to prevent the boy from loitering or playing near the building; that this duty was not discharged, that he did not warn the boy, or his companions, of the danger in being near the building, and did not take measures necessary to prevent the boy and his companions from playing and loitering near the building; but negligently and carelessly failed to take any precaution or give any warning, and as a direct and proximate result of such negligence, the boy was killed by an explosion of the dynamite caused by ignition from a detonator cap in the hands of defendant's servant, or from some other cause unknown to plaintiff.

In cases of this character, the declaration must aver the duty owed by defendant, the existence of negligence in its performance, and specify the act causing the damage. Snider v. Wheeling Electric Co., 43 W. Va. 661, 28 S. E. 733. The declaration conforms to this requirement. The declaration says it was the duty of the defendant, knowing that the boy was in the habit of playing and loitering near the building containing dynamite and detonator caps, to give warning to the deceased and take precautions necessary to prevent and restrain him from playing and loitering near the building; that this duty was not performed, and that its non-performance was negligence, resulting in the injury.

The issue presented to the jury under the general plea was, whether defendant had used due care, caution and prudence to prevent the boy from playing and loitering near the building.

Defendant had leased and was operating a rock quarry on land adjoining the Seneca Trail between Union and Salt Sulphur Springs in Monroe county and was crushing rock to be used in the hard-surfacing of that highway. About 150 feet from the rock crusher and a distance of 31 feet from the highway, the tool house was constructed, rather a substantial building, about 14x8 feet with one door, to which was attached a lean-to, open on two sides, in which the blacksmith shop was operated. The powder house was back of the quarry much farther from the road. The property was enclosed by a fence. The oil and gas house which supplied the trucks with oil and gas adjoined the "Seneca Trail" and was perhaps 150 feet from the tool house. About 22 men were employed at the quarry in various capacities, including foreman Hill, but not including defendant who was on the job looking after his quarry operations. Plaintiff lived near the Trail about 1, 000 feet from the quarry toward Union, and on the opposite side of the road with her family, consisting of three boys and two girls. Defendant began operations in March, and on the 17th day of May, 1930, about two months after the operation began, an explosion of dynamite occurred in the tool house which demolished the house, killed Paul Shires, who was in the tool house, the blacksmith Johnson, and the three sons of plaintiff, one fourteen years old, the other ten. and the youngest eight, and also a water boy who seems to have been near the building at the time of the explosion. This action is, as above stated, for the death of the plaintiff's youngest son, Joseph. No one seems to know what caused the dynamite to let go. Shires was seen in the tool house a short time before the explosion, but no one was positive as to what he was doing. Whether he was preparing the caps to go on the dynamite is chimerical. It was one of his duties which he was instructed to perform, and usually performed, elsewhere. Nor is it shown how much dynamite was in the tool house where it was placed temporarily for use at the quarry nearby. There were two cases weighing about fifty pounds each found in one corner of the tool house after the explosion and which were not much disturbed by the explosion. The dynamite which exploded, the amount of which is unknown, was in another part of the tool house where it made an excavation in the ground.

On the issue of the reasonable care and precaution exercised by defendant to prevent the boy from playing and loitering near the tool house and blacksmith shop, plaintiff showed by several witnesses that all three of the boys frequently came to the quarry and to the blacksmith shop, and that the oldest boy was seen a time or so helping the blacksmith either in holding irons or keeping the fire going; and the three were seen near the tool house a short time before the explosion which occurred at noon. On the other hand, it was shown that all of the workmen were instructed to keep children off the works, as well as all other persons; that Hill, the foreman, had driven them from the quarry to the road, and that they had been told by others connected with the operations to stay away as they were liable to be injured. About twenty minutes before the explosion, witness Skelton says the boys were standing near the blacksmith shop when Hill, the foreman, came to the shop and drove them over the fence into the highway following them until they crossed the fence, the larger boy going over the fence and the smaller boys through it. Hill says he went to the shop at 11:30 to get a piece for the crusher and found the boys there and told them to go home, and they immediately left, he following them until they crossed to the highway, and started in the direction of their home. He remained at the shop three or four minutes, and went back to his duties, and the explosion occurred at noon. Defendant Terry had observed the boys at the crusher on a former occasion, and had told them to stay off the premises, that they were in danger of being hurt, and had taken the oldest boy by the hand and led him to the highway, the others preceding them. He is corroborated by other witnesses. Both defendant and the foreman say they saw the boys there two or three times only and then required them to leave, warning them that they might get hurt. The blacksmith was told not to permit boys about the shop. The boys would frequently come to the oil house, and Tilley, who wras in charge of the trucks, upon instructions of defendant, kept them away from the oil house as best he could, and at one time went so far as to "get a brush" after them and to chase them away.

The first point of error is the refusal to permit evidence offered by plaintiff to show the character and extent of the use of the highway by the public, and the remark made by the trial judge in rejection of that evidence wherein he said: "I will sustain the objection. I have given this careful consideration. If this child had been killed on the public highway, then this would be pertinent, but it is on the theory of being an invitee and not a trespasser. Had you said this constituted a nuisance to all those travelling the public road and the child was on the public road and by reason of that it was killed in a place it had a right to be. that would be pertinent, '' While evidence was admitted to show that busses and mail carrier passed over the road during the progress of the work, the extent of its use by others would have had little bearing on the issue raised by the pleadings, and was properly rejected. The remark of the court in rejecting the evidence and its possible effect...