Hercules Powder Co. v. Wolf , 145 Miss. 388 ( 1927 )

^* Corpus Juris-Cyc. References: Explosives, 25CJ, p. 186, n. 60; p. 206, n. 38 New; Negligence, 29Cyc, p. 611, n. 27, 29; p. 612, n. 34. On liability for injury to children from explosives left accessible to them, see annotation in 14 L.R.A. (N.S.) 586; 24 L.R.A. (N.S.) 1257; 42 L.R.A. (N.S.) 840; L.R.A. 1917A, 1295; 11 R.C.L. 664; 2 R.C.L. Supp. 1299; 5 R.C.L. Supp. 614; 6 R.C.L. Supp. 668. As to admissibility of evidence of other explosions to show negligence, see annotation in 32 L.R.A. (N.S.) 1094; 11 R.C.L. 670; 2 R.C.L. Supp. 1302. The Hercules Powder Company was engaged in blasting stumps from a considerable area of cutover land, in Forrest county, with the consent of the owner of the land. It used for this purpose dynamite cartridges that were fired by means of a dynamite cap. Joseph Wolf, a small boy, went on a portion of this land in search of a cow belonging to his father, found a box of these dynamite caps, which the jury were warranted by the evidence in believing had been left there by the powder company's servants, and, while playing with one of the caps, it exploded and injured his hand. He sued the powder company, by his father as next friend, for the damages thereby sustained by him, and his father and mother also sued the company for the damages they also sustained thereby.

These cases, by consent, were tried together, before the same jury, and there was a verdict and judgment in each for the plaintiff, from which the powder company has brought the case to this court. The errors assigned are the refusal of the court below to grant the powder company a peremptory instruction, the granting of several instructions for the plaintiffs, and the admission of certain evidence introduced by the plaintiffs.

The substantial facts are about as follows:

The land, the area of which was quite large, was uninclosed, and persons and cattle were accustomed to roam at large thereon. The place at which these caps were found was within a few yards of a public road, and a very short distance from a public school. The cow owned by Joseph Wolf's father was accustomed to graze over the portion of the land in the vicinity of the place where the caps were found, and on several occasions he (Joseph Wolf) had been sent by his father to drive her back home. He was engaged in looking for this cow at the time he found the box of caps.

Over the objection of the appellant, the plaintiffs were permitted to introduce evidence that the dynamite cartridges had been left by the appellant's servants unexploded in stumps on other portions of the land, and that dynamite caps left by its servants had also been found on other portions of the land.

The place where these caps were found was readily accessible to, and the jury were warranted in finding would probably be visited by, children, which latter fact the servants of the appellant should have reasonably anticipated, and, since dynamite caps and explosives generally are naturally attractive to children, the rule is that persons storing or using them in such places must use a corresponding degree of care to protect children from injury therefrom (Hamblin v. Gano [Miss.], 76 So. 633; McTighe v. Johnson, 114 Miss. 862, 75 So. 600; 25 C.J. 186), from which it follows that the peremptory instruction requested by the appellant was properly refused.

Several of the appellees' instructions to the jury charged the jury to find for them, in event the caps were negligently left by the appellant's servants at the place they were found, and none of the appellees' instructions defined negligence or advised the jury from what circumstances it could be inferred. Assuming, but only for the purpose of the argument, that these instructions were defective in that respect, any error therein was cured by the instructions granted for the appellant. One of the appellees' instructions, however, omitted any reference to negligence, but charged the jury, in effect, to find for the plaintiff in event the caps were left on the land by the appellant's servants, were found by Joseph Wolf, and that he was injured while playing therewith. This instruction, of course, should not have been granted, but we are not called on to decide whether the error therein was cured by the appellant's instructions, for the reason that the case must be reversed on another ground.

The evidence of the other acts of negligence similar to the one here in question, and hereinbefore referred to, on the part of the appellant's servants, should not have been admitted. 29 Cyc. 611; Mississippi Central R.R. Co. v. Samuel Miller, 40 Miss. 45; Southern Railroad Company v. Kendrick, 40 Miss. 374, 90 Am. Dec. 332. "The tendency of such evidence was to confuse and mislead the jury, and to prejudice the" appellant (Tribette v.Railroad Co., 71 Miss. 212, 13 So. 899), and related to "collateral facts, which furnished no legal presumption as to the principle facts in dispute, and which the defendants were not bound to be prepared to meet" Collins v. Inhabitants ofDorchester, 6 Cush. [Mass.] 396.

There are two exceptions to this rule of nonadmissibility of evidence of collateral facts. They are set forth in Kress v. Markline, 117 Miss. 37, 77 So. 858, Ann. Cas. 1918E, 310, as follows:

"One is to show that the defect or manner of operation has continued for such a length of time that the master has knowledge or is charged with notice of the defect or negligent manner of operation. The other ground of admissibility is to show the dangerous character or nature of the place."

Here knowledge by the master of the manner in which its servants were using the dynamite caps is of no consequence; and the dangerous character of such caps was not only not shown by the collateral evidence here introduced, but was a fact not necessary to be proven.

Reversed and remanded.