Hercules Powder Co. v. Williamson

*183 ANdeesoN, J., delivered the opinion of the court. Appellee, Lee Williamson, brought this action in the circuit court of Forrest county against appellant, Hercules Powder Company, to recover damages for an injury received by him alleged to have been caused by the negligence of appellant, and recovered a judgment for twenty thousand dollars. From that judgment, appellant prosecutes this appeal. (Appellee and appellant will hereinafter be referred to as plaintiff and defendant, respectively.) 0(u the trial defendant introduced no witnesses. At the conclusion of plaintiff’s evidence, the defendant moved the court to exclude the evidence and direct a verdict in its favor. This motion was overruled, and thereupon the case went to the jury on instructions granted at the request of the parties. The grounds relied on by defendant for reversal are that the court erred in refusing to direct a verdict in its favor and in granting certain instructions requested by the defendant. There was no substantial conflict in the evidence. The statement of the facts of the case are fairly a.nd clearly set out in the brief for defendant. We therefore adopt that statement of facts, which is as follows: The Hercules Powder Company has a large plant at Hattiesburg, Miss., for the purpose of extracting turpentine and resin from pine stumps taken from the cut-over pine lands in South Mississippi. The process by which these stumps are removed from the ground is substantially this: The Hercules Powder Company locates a camp out in the woods, and employs' a number of men under a camp foreman. These men are divided up into crews of ordinarily six men. Each crew of six men is provided with two augers. These augers are about three feet long, and are propelled or driven by electric motors. There are two men to each one of these augers. With these augers, these men bore holes in the pine stumps, and, as they are boring the holes, the other two men in the *184 crew that are not engaged in operating these augers pack charges of dynamite in these holes in the stumps, and put dynamite caps with fuses attached to the caps in these sticks of dynamite. Once or twice a day all the men in the crew, including those who have been boring, and those who have been loading stumps, light the fuses attached to these charges of dynamite for the purpose of blowing these stumps out of the ground. The men who are engaged in boring these holes determine by the size, soundness, and the'general appearance of the stumps whether they will bore one hole or two holes in the stump, and also determine whether they will bore the hole in the top of the stump or in the side of the stump. The men who are placing the charges of dynamite in the stumps also used their judgment as to the number of sticks of dynamite they will place in each stump, being guided in this respect likewise by the size, soundness, and general appearance of the stumps. If the charge of dynamite is not sufficient to blow the stump out, but blows only one side of the stump out, it is necessary to “back-shoot;” that is, to bore another hole in the stump and place another charge of dynamite in it so as to blow the stump out. If the charge of dynamite bursts the stump to pieces, but does not blow it out of the ground, then it is necessary to pull it out by means of a tractor or other means to remove it. On the other hand, if the charge of dynamite that is placed in -the stunrp is too large, it bursts the stump to pieces and blows it a good long ways. Owing to the fact that no two stumps are of the same soundness and the same texture, the quantity of dynamite that is placed in each stump is necessarily a matter that is controlled by the judgment of the men who are boring the holes and placing the charges of dynamite in the stumps: These crews of men who are boring holes and placing the charges of dynamite, as above stated, ordinarily “fire out,” or “light out,” at noon, and just before quitting time in the evening. They would ordinarily have three hundred or four hundred stumps bored, *185 charged, and ready to “light out” in the forenoon, and a like quantity in the afternoon. When they started to “light out;” that is, light the fuses that were attached to the sticks of dynamite, all the men in the crew, including those who had been boring and those who had been placing the charges of dynamite, would line up with oak ooals for torches and commence lighting fuses. They would continue to light these fuses as rapidly as possible until the first charge of dynamite exploded, when the men would all start to run for a place of safety. When the charges of dynamite that had been fired had all exploded, the men would return and start lighting again, and continue as before, until the first charge of dynamite exploded, and they would again run for safety. They would continue this process until the entire number of stumps that had been loaded with dynamite had been “fired out.” As these charges of dynamite exploded, the stumps would be blown out of the ground, some of them split to pieces, and pieces of these stumps would be blown through the air a distance of four hundred, five hundred, or six hundred yards. Consequently, as the men ran out of the way, it was necessary for them to watch for pieces of flying stumps. After these stumps were dynamited in this manner, there was another crew of men known as the “cutting crew,” who came along with their axes and split and chopped up the large pieces, and then another crew known as the “hauling crew” came along with trucks, loaded this wood, and hauled it in to the plant or to the railroad track where it was loaded in cars to be transported to the plant at Hatties-burg. Lee Williamson, the appellee, the plaintiff in the court below, worked for the Hercules Powder Company for a time as a member of the hauling crew. He left the service, but later was engaged as a member of the blasting crew. On the morning of the 7th of October the plaintiff started out as a member of the blasting crew, and he and another employee bored stumps until they fired out *186 at noon. At noon they had some three hundred or four hundred stumps bored, and therefore they made three firings in order to shoot this number of stumps. That afternoon he continued, as in the forenoon, to bore the stumps, hut, on account of the woods having been afire, they did not have such a large number to shoot at quitting time, so they “fired out” only one time that afternoon. Thus the plaintiff: assisted in firing, out four times on the 7th. Oin the 8th of October the plaintiff was again engaged in boring stumps, but he did not assist in “lighting out.” While the other boys were lighting the fuses, he removed the augers, and was otherwise engaged. On the morning of the 9th the plaintiff, with the other members of the crew, went to work at 6:30 a. m., and by 8:30 a. m. they had ninety-five stumps bored and loaded. The blasting foreman directed them to “fire out.” They commenced to light the fuses in the usual and ordinary manner, and, when they had fired perhaps half of the stumps, the first charge of dynamite exploded, and they started to run for safety. A large piece of stump fell on the foot of the plaintiff, breaking some bones, and otherwise seriously injuring his foot. Plaintiff’s declaration was in two counts. In substance, the negligence charged in the declaration was that the crew with whom the plaintiff worked was required to charge one hundred stumps with dynamite, and blow them up at one and the same time; that the stumps were greatly overloaded with dynamite; that the crew were instructed to increase the charge of dynamite put in the stumps without notice to the plaintiff or knowledge on his part; that fuses of only eighteen inches were used; and that good dynamite and bad dynamite were used without notice to the plaintiff or his immediate superior W. E. Eaton. The declaration was not demurred to by the defendant. The trial was had alone on the plea of the general issue. The defendant’s position is that plaintiff wholly failed either to establish, or tend to establish, any one of the *187 specific acts of negligence charged in the declaration, and that, therefore, it was entitled to a directed verdict. While the plaintiff’s position is that, although the evidence failed to establish, or lend to establish, any of the specific” acts of negligence set out in the declaration as a ground for recovery, nevertheless the evidence fairly tended to show that the method or system which the defendant adopted in blowing up the stumps was unnecessarily dangerous and negligent, and, that, under the law, if such system was unnecessarily dangerous, resulting in plaintiff’s injury, the defendant was liable, and whether it was unnecessarily dangerous was a question for the jury. The defendant controverts that legal proposition, and the defendant contends, furthermore, that, if mistaken in that view, the plaintiff did not make a case for the jury because the declaration failed to charge that the plaintiff received his injury as the result of an unnecessarily dangerous and negligent system inaugurated by the defendant for carrying on the work. It is true, as contended by defendant, that the plaintiff wholly failed to prove or introduce evidence tending to establish any specific act of negligence on the part of defendant’s employees (coemployoes with the plaintiff) or defendant’s foreman in charge of the work, taking place during the progress of the work which caused plaintiff’s injury. If the plaintiff made a case for the jury, it was on the ground that the method or system inaugurated by defendant for carrying on the work was unnecessarily dangerous to defendant’s employees engaged in the work. First, with reference to the soundness of the legal proposition relied on by the plaintiff. The degree of care required of persons possessing and using dangerous explosives such as dynamite is of the highest. The utmost caution must be used by them to the end that harm may not come to others. This principle is established by several decisions of our court, and is probably the universal rule in the courts of this country. Barmore v. Railway Co., 85 Miss. 426, 38 So. 210, 70 L. R. A. 627; 3 Ann. *188 Cas. 594; McTighe, Hughey v. Johnson, 114 Miss. 862, 75 So. 600; Hamblin v. Gano (Miss.), 76 So. 633; Evans v. Brown (Miss.), 106 So. 281; 11 R. C. L. p.. 653, par, 3, page 662, par. 14. And, in order to protect their servants from injury the same degree of care applies to masters using highly dangerous explosives in the conduct of their business, and this high degree of care on the part of the master applies to the plan or system adopted by him for the conduct of his business. If that plan is inherently defective and unnecessarily dangerous, its adoption is an act of negligence, and entails liability on the master for the resulting injury to his servants. In other words, we hold that, in order to safeguard his servants against injury, a master handling a highly dangerous explosive in the conduct of his business must not only exercise the highest degree of care in the doing* of the specific acts, which together constitute his method or plan of carrying on the business, but he must use the same degree of care in adopting such system or plan; and, if he adopts a plan or system which is unnecessarily dangerous to his servant, he is liable for any injury resulting therefrom, although such injury may not have immediately resulted from any single specific act of negligence on the part of the master or a fellow servant of the injured person. The assumption of risks doctrine has no application in such a case. Such negligence is in the same category as any other negligence of the master resulting in injury to his servant. Jobe v. Spokane Gas & Fuel Co., 73 Wash. 1, 131 P. 235, 48 L. R. A. (N. S.) 827; Williams v. Spokane, 73 Wash. 237, 131 P. 833; 3 Labett’s Master and Servant (2d Ed.), p. 2679, section 103, and page 2699, section 1017, and note. We think there was sufficient evidence to go to the jury on the question of whether or not the system adopted by the defendant for blasting the stumps was unnecessarily, and therefore negligently, dangerous. The evidence showed, without conflict, that under the system adopted by the defendant it was utterly impossible for the de *189 fendant’s employees to reach, a place of safety after the dynamite in the stumps began to explode. ¡Parts of the stumps were at times thrown from four hundred to six hundred yards. When the explosions would begin, and not until then, the members of the crew under the rule laid down for their guidance by the defendant would run for safety. It was then too late to reach a place of safety. There is no dispute in the evidence as to that fact. Although it is true that there is no material conflict in the evidence, still the evidence is such that the jury might have fairly drawn therefrom an inference that defendant’s method of carrying on the business was unnecessarily dangerous to its employees. Certain facts may be clearly established from which one sensible, impartial person would infer that proper care had not been used. Another person, equally sensible and equally impartial, would infer that proper care had been used, and therefore, no negligence. In this class of oases the law commits the issue of fact to the jury. The ordinary jury is supposed to be, and is usually comprised of, men of education and men of little education,' or men of learning-in particular lines, and men whose learning consists of only what they have seen and heard, of merchants, mechanics, farmers, and laborers. Thus constituted, they sit together consulting and applying their separate experiences in the affairs of life and from the proven facts draw their conclusions. “This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man; that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.” Sioux City & Pacific Railway Co. v. Stout, 17 Wall. 657, 21 L. Ed. page 745. Applying these principles to the undisputed facts in this case, we think a jury might have reasonably drawn the inference from such facts that defendant’s method of blasting the stumps was unnecessarily, and therefore negligently, dangerous; that, instead of the method *190 adopted, the defendant could have reasonably, without interfering with the efficient conduct of its business, adopted a method of warning to the blasting* crew which would have given them an opportunity to get out .of reach of danger before the first explosions took place. The defendant contends, however, that no such case as that was made by the plaintiff’s declaration. If such a case is alleged in the declaration, it is in there in a very vague and indefinite manner. But, taking all of the- allegations and construing them all together, there is charged in a way that the system adopted by the defendant is unnecessarily dangerous to its employees. And, furthermore, the failure of the declaration to properly charge the case now relied on by the plaintiff cannot be taken advantage of for the first time in this court. The defendant should have interposed a demurrer to the declaration, and, in that manner, tested the question. Under the statute of jeofails, such defects in the declaration are cured by verdict and judgment. And, if there was a variance between the case made by the declaration and the proof, that question should have been raised by a motion to exclude the evidence on that ground. This was not done. The judgment in this case, however, must be reversed on account of the error of the court in giving the third and fourth instructions for the plaintiff. It is not necessary to sot out these instructions. They were asked for, and given, on the theory that there was evidence tending to establish the various acts of negligence specifically set out in the plaintiff’s declaration, when, in fact, there was no such evidence. The jury were told in these instructions, among other things, that it was the absolute duty of the defendant to so conduct the blasting of the stumps that the plaintiff and the other members of the crew could get out of reach of danger before explosions began. It was not the absolute duty of the defendant to so protect its servants. It was only required to adopt a better method, provided the one in use was *191 unnecessarily dangerous to its servants, and that was the question which should have been submitted to the jury. And these instructions also authorize the jury to predicate liability on the large number of stumps charged with dynamite and with various other acts that were charged in the declaration and not proven. These instructions on the issue of liability should have been confined strictly to the case which the evidence tended to mate; namely, that defendant’s plan or system as a whole was unnecessarily dangerous. The jury liad no true guide in the instructions which would enable them to render a proper verdict in the case which the evidence tended to make. In other words, the evidence tended to make one case, and the instructions to the jury, in part, authorized a verdict for the plaintiff based on an entirely different case. Reversed and remanded.