Heath v. Calkins

Hooker, J. The defendant was a druggist. He was also engaged in the business of photography, especially that of taking flash-light pictures. The pictures were generally taken by one Thomas, assisted by the plaintiff, who usually operated the flash light. Both were employés of the defendant. On the occasion of the accident which led to this action, the defendant procured some flash-light powder supposed to be similar to, if not identical with, that generally used by him. The manufacturer testified that it was identical with it, and there is no testi [289] mony, aside from the fact of the accident, tending to contradict such statement, unless it be the fact that it was called by a different name, which was explained. It appears to be conceded that the flash-light powder theretofore used had never appeared unsafe. It had been the practice to mix magnesium with such powder, which was usually, if not always, furnished by the defendant, “ or whoever was in his store,” to Thomas, who mixed it with the powder. This was to get a maximum amount of light, and they were mixed in equal proportions. It was the practice to mix it in the store on the scales. There was evidence that the addition of magnesium to the powder would not tend to make it explosive, that it would give no such property to the flash-light powder, and this testimony was uncontradicted. Thomas testified that on this occasion the defendant personally gave him the powder. He does not say who gave him the magnesium unless it is to be inferred from the statement: “ Mr. Calkins furnished me the powder which I used in making my preparation for the flash light. He furnished it to me personally, and I mixed it in the store as usual. * . * * I took this powder and mixed it exactly the same way as I had always done, equal parts of the magnesium and the powder.” This was uncontradicted. The use of this powder was accompanied by a violent explosion, and plaintiff lost his hand. The defendant claims that this is conclusively shown to have been a safe powder; that magnesium was used with it; that magnesium could not cause the mixture to be explosive. His counsel therefore contend that the explosion is a mystery, and that it is not shown that he has been negligent. It is also said that in furnishing powder procured from a reputable dealer he discharged his whole duty. The trial judge directed a verdict for the defendant, and plaintiff has° appealed. It is a self-evident proposition that this mixture ex- ■ ploded. It is therefore a natural, though perhaps not an [290] inevitable, inference that the explosive property should be sought in the powder itself, or in the ingredient itself, or, if in neither alone could it be found, then in the combination of the two ingredients. Was there any evidence from which an inference could be drawn which it was ? Under the evidence, the powder was not explosive, the magnesium was not explosive, and the combination of the two in equal parts would not be, and never had been within the parties’ experience, explosive; If the jury were convinced of these things, they would naturally suspect that some mistake was made, and that magnesium or flash-light powder was not used, but some other powder or mixture more harmful. The testimony on this subject might be more satisfactory. If Thomas’ testimony will bear the construction that defendant personally delivered to him both ingredients, about which minds might differ, it does not unequivocally show that one was magnesium, while the defendant is silent upon the subject. We are of the opinion that there is evidence in this case from which the jury may have found that this explosion was due to the flash-light powder, though the weight of the testimony on this record was clearly and strongly against it. Whether the defendant could be said to be negligent, in view of the source from which he purchased, we need not decide, because it was competent for the jury to find that the explosion was caused by the other ingredient, and that, magnesium not being explosive, or capable of making the mixture explosive, it must have been something else, and, if so, and it was negligently furnished by defendant himself, or his drug clerk, he might be liable, while, if procured by Thomas himself, the question of negligence of a fellow-servant might perhaps be controlling, a point we do not decide. Counsel contend that this explosion might have been due to other causes, as that the bottle with powder in it might have been left in the pan, and, being confined, an explosion resulted, while, had it been properly used, there would have been no explosion, and that color is given to [291] this theory by the fact that the bottle was never found. Other causes are suggésted, such as that too much powder was used, or the wrong bottle taken by Thomas by mistake. If there was evidence tending to show any of these, they were legitimate inquiries for the jury, and if each of these causes was as probable as any of the others, the learned circuit judge was right. Whether there was evidence tending to prove all of these, we cannot say. We think not, but we do think that there is testimony from which a juror might reasonably believe that a substitute for magnesium was used through defendant’s error or that of his clerk, and it was for the jury to say whether, under the proof, this was the more probable theory. If they could not say that, they would be unable to reach a verdict for plaintiff on that theory, for the plaintiff should not recover upon proof of facts equally as consistent with the absence of negligence on the part of defendant as with it. In some cases we can say that of testimony. In others, it is of necessity a question for the jury. We think that this case belongs to the latter class. The judgment is reversed, and a new trial ordered. Blair, C. J., and Montgomery, Moore, and McAlyay, JJ., concurred with Hooker, J.