Westlake v. Keating Gold Mining Co.

MR. JUSTICE SANNER delivered the opinion of the court. Action by appellant to recover damages for personal injuries caused by an explosion of dynamite in a mine of the respondent company on January 18, 1911. Nonsuited upon the trial, he appeals from the judgment. The allegations of the complaint touching the cause and manner of the accident are as follows: “That on the 18th day of January, 1911, and for some time prior thereto, the defendants negligently stored and kept and thawed in said mine, where said mining operations were carried, on, large quantities of dynamite and other- highly explosive substances, and, as plaintiff is informed and believes, largely in excess of 3,000 pounds, and at a point in said mine about seventy-five feet from said incline shaft, and at said shaft where, in its downward course, it reached the 200-foot ievel, and where, should an explosion of same occur, escape by those working in said mine, in the employ of the defendant company using said incline shaft as a means of egress, would.be cut off, and where, should an explosion of said dynamite occur, the lives of the said employees of said defendant company, working in said mine and near said incline shaft, would be imperiled; * * * that the said defendants so storing and keeping said dynamite and other highly explosive substances, as aforesaid, and at the place designated negligently placed a portion of same in a tight compartment for storage preparatory to use, and, for the purpose of thawing the same and the said dynamite and other explosive substances so placed in said compartment for the purpose of being thawed, the defendants negligently used and caused to be — 127 — used electricity to such an extent that said dynamite and other, highly explosive substances so being thawed, as aforesaid, were heated to excess; and plaintiff further avers that the use of electricity for the purpose named, as a thawing agency and in the manner stated and at the place named and to the extent used, was highly dangerous—all of which facts the defendants knew, or, in the exercise of reasonable diligence, could have known; and plaintiff avers that the use of electricity in the manner in which the same was used there by defendants for the thawing of said dynamite was gross and wanton negligence on their part; * ® * that on the 18th day of January, 1911, said dynamite and other explosives so being thawed, as aforesaid, and through and by reason of electricity being used for thawing the same, and by reason of said dynamite so being thawed being heated to excess through the use of said electricity in the manner in which it was, exploded, and through the explosion of same all of the dynamite so stored in said mine, as aforesaid, exploded, and through the explosion of said dynamite and other explosives, as aforesaid, and by reason of the force of such explosion, said plaintiff so working in said incline shaft received injuries,” etc. No special difficulty is presented in the dissection of these allegations; and, for the purpose of determining what proof was admissible under them, and whether a sufficient case was made to go to the jury, we say they fairly and sufficiently allege that the appellant’s injuries, occasioned by the explosion, were due to the negligence of respondents in the following particulars: In having ¡more than 3,000 pounds of explosives in the mine; in having explosives stored at a place in the mine where, should they explode, escape by those in the mine would be cut off; in having explosives stored at and near the shaft where, should they, explode, the lives of the persons working in the shaft would be imperiled; and in the method used for “thawing,” to-wit, the use of electricity in such a manner and to such a degree that the portion of the explosives being thawed became heated to excess. So construing the complaint, we proceed to ascertain the value of the ease made, having in mind the rule that the appellant — 128 — [1] was not required to prove negligence in all the particulars alleged (Beeler v. Butte & London Dev. Co., 41 Mont. 465, 110 Pac. 528), but that it was sufficient to take the case to the jury if the evidence presented in this behalf tended to establish that negligence in any of these particulars caused his injuries. (Hoskins v. Northern Pac. R. Co., 39 Mont. 394, 102 Pac. 988.) The allegation of negligence in storing more than' 3,000 [2] pounds of explosives in the mine charges the violation of a specific duty imposed by section 8546, Revised Codes, and such a violation is negligence per se. (Conway v. Monidah Trust, 47 Mont. 269, 132 Pac. 26; Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441; Neary v. Northern Pac. R. Co., 41 Mont. 480, 110 Pac. 226; Monson v. La France Copper Co., 39 Mont. 50, 133 Am. St. Rep. 549, 101 Pac. 243.) The respondents, insisting that the presence of negligence per se is of no importance unless it was a proximate cause of the injury, call our special attention to the case of St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 57 L. Ed. 1179, 33 Sup. Ct. Rep. 858, and assert that “there is no showing in pleading or in evidence that the excessive quantity of powder had anything to do with the explosion. ” It is a rule so fundamental as to be axiomatic, [3] to which the McWhirter Case adds nothing, that before negligence, however established, can become a basis of recovery, causal connection must be shown between it and the injury complained of. This court has so held on several occasions, including that of Monson v. La France Copper Co., supra, which we are assured is decisive against the appellant. The Monson Case aptly expresses the rule, and as aptly indicates the limit of its application. That action was for the death of a miner who, it was alleged, had fallen from a cage in the defendant’s mine because of the operation of the cage without the gates required by statute—a clear charge of negligence per se. In the course of the decision this court, speaking through the Chief Justice, said: “We find the neglect of duty on the part of the defendant and the death of the deceased established beyond question, * * # but no fact or circumstance appears from which any reasonable — 129 — conclusion may be drawn that this neglect of duty bears a direct, proximate, causal relation to the death of deceased. There is no direct evidence that the deceased got into the cage at the 1,400-foot level, but, assuming that this fact is established, * * * there is no evidence as to how the deceased got out of the cage; * * * there is nothing to show whether he died from natural causes, or from the violence of a fall, or from being squeezed by the cage as it passed the timbers. ’ ’ How wide the divergence is between the situation thus disclosed and that at bar is manifest. Here it is established that the dynamite which was being kept in the Keating mine—whether more or less than the law allows— exploded and produced appellant’s injuries. When a quantity of dynamite by exploding produces injury, there is a causal connection between the dynamite and the injury; and if the existence of that quantity in that place is negligence, a causal connection is made by the explosion between that negligence and the injury. It does not answer to say that a quantity of dynamite less than 3,000 pounds may or would have exploded under the same circumstances, or that the explosion of a quantity less than 3,000 pounds, under the same circumstances, may or would have produced the same injury. To suppose that a specific causal connection must be shown between the injury and the existence or explosion of that portion of the dynamite which exceeded 3,000 pounds would entirely defeat the statute, considered as a foundation of civil liability. The appellant’s injuries were caused by the explosion of a quantity of dynamite kept in respondents’ mine, which it is claimed was greater than that allowed by law; this, if true, was sufficient; for “where the cause of an injury is specifically ascertained, the law will not stop to speculate upon what might have occurred had such cause been absent.” (Thompson on Negligence, secs. 45, 49.) Whether at the time the explosion occurred there were to exceed 3,000 pounds in the mine is a matter about which men may differ upon reading the record; but, having in view the rule that upon a motion for nonsuit the evidence must be taken in its most favorable light, and to establish whatever it fairly tends to prove, — 130 — it is deducible from the testimony that such was the fact. Hence, upon this aspect of the case, a sufficient showing was made to take it to the jury. The allegation of negligence in storing the dynamite at a place in the mine where, should it accidentally explode, escape by those working in the mine would be cut off, also charges the violation of a specific duty imposed by section 8546, Revised Codes. Such [4] a violation is negligence per se; but it is obviously of such a character that no causal relation can exist between it and any injuries save those suffered by persons .whose escape had in fact been cut off by the explosion. The appellant was not one of these; he was above the place of storage, above the point of explosion, and his means of egress were in no wise affected by it. The lack of causal connection between his injuries and the place of storage—considered as a potential danger, by stopping egress in case of explosion—is perfectly clear. But the place of storage presents another aspect under the allegation of negligence in storing the dynamite at a place where, [5] should an explosion occur, the lives of persons working in the shaft, among whom was the appellant, would be imperiled. As to this he invokes the doctrine that the master is obliged to use reasonable care to furnish his employee with a reasonably safe place in which to work, the respondents insisting that the complaint does not charge a violation of that duty, and that “the doctrine of a safe place is not in the case.” While it is true that the words customarily used in formulating this charge do not appear in the complaint, the language actually employed is their equivalent. In O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724, the only plea of negligence was that, at a point about forty feet from where the plaintiff was working, the defendants “had negligently and wrongfully stored and were keeping a large and dangerous quantity of dynamite, ’ ’ which exploded and killed Daniel O’Brien; but we held that under it the measure of the master’s liability was to use reasonable care to provide the servant with a reasonably safe place in which to work. Turning, then, to the evidence, we observe: — 131 — That the appellant was engaged in the shaft at a point about fifty feet above the 200-foot level; that a large quantity, of dynamite was kept at the 200-foot level, near the shaft in which appellant was working; that it was stored at a point about seventy-five feet from the “thawer,” in which dynamite was being heated so as to be rendered more readily explosive; that the dynamite both in the thawer and at the shaft, exploded; that by the explosion appellant was injured, his life imperiled, and the life of one of his companions destroyed. It is said that in point of fact there is no analogy here with the O’Brien Case, because caps were stored with the dynamite in that ease. The difference is one of detail, not of principle. So far as we can tell, there was no exigency or custom that required the storing of the dynamite so close to the shaft that the effect of its explosion could be felt therein, or so near to the thawer as to increase the danger of explosion; and if, as may be inferred from the facts shown, the danger of explosion was increased by storing the large quantity of dynamite at a point so near the thawer, then, for the reasons stated in the O ’Brien Case, enough was shown to take this case to the jury on the question whether the respondents had negligently failed to furnish appellant with a reasonably safe place in which to work. The appellant also insists that, independently of the foregoing contentions, a sufficient showing was made as to the negligent cause of the explosion, under the allegations of the complaint touching the methods of thawing. According to the testimony, [6] the purpose of using a thawer is to heat cold dynamite which is not sufficiently sensitive for mining purposes, so as to make it more readily explosive. The more it is heated the more it will respond to the instrumentalities capable of inducing explosion. The thawer was a cabinet within a cabinet, situated along a drift about twenty-five or thirty yards from the shaft; the outer cabinet consisted of an excavation in the drift inclosed by a front made of scrap lumber set into the walls and floor of the drift, “put up to make a fairly close covering,” and covered with gunnysaeks and rags; the entrance to this outer — 132 — cabinet was through a door large enough for a person to pass through conveniently. The inner cabinet was a box 2x3 feet in size; the whole front side of it being removable. It was constructed of new lumber. Within it were four shelves made of boards, some of which were perforated, and two 32-eandle power, and three 16-candle power, incandescent electric lights. In thawing the dynamite was laid upon the shelves in the inner cabinet, where the heat generated by the electric lamps brought it to or beyond the desired stage. Thawed dynamite was also kept in boxes in the outer cabinet, preparatory to distribution among the miners as needed. How much heat was generated by the means employed is not shown, and there was no thermometer or other device in the cabinet by which it could be ascertained; nor is there any testimony showing the exact degree to which dynamite should be thawed in order to be available for mining purposes and at the same time be reasonably safe, considering the nature of the substance. The record, however, is replete with testimony that it was often too hot. Some of the witnesses testified that it was sometimes so hot as to be sweaty and mushy; when in that condition it was especially sensitive and dangerous to handle. On two occasions it was so hot when delivered to the miners that they felt impelled to cool it before using, for fear of a premature explosion. Surely it was a question for the jury whether a method capable of producing such results was a reasonably safe one, or whether, as employed, it was unsafe in the respect alleged; and, as the master is obliged to use ordinary care to select such methods or appliances as are reasonably safe, having in mind the nature of the business in hand, it is clear that ample proof was made of negligence in this regard. The respondents argue, however, that since the appellant charges the explosion to have occurred through the overheating of the dynamite, his case has failed, because there is no evidence that heat will explode dynamite, or that the thawer was generating a degree of heat sufficient to effect that result. The witness Boulware distinctly testified that the dynamite could be exploded by heat alone; “getting hot in the sun might explode — 133 — it,” he said. But we do not understand the appellant to have been so limited by his complaint that he was obliged to show a spontaneous explosion from heat alone; his allegation touching the overheating of the dynamite posits a conditio sine qua non, which, if established by the proof and shown to be negligent, is sufficient. (Lundeen v. Livingston E. Light Co., 17 Mont. 32, 41 Pac. 995; Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130; O’Brien v. Corra-Rock Island Min. Co., supra; Stewart v. Stone & Webster E. Corp., 44 Mont. 160, 119 Pac. 568.) The question, therefore, is whether there was sufficient evidence that overheating of dynamite caused the explosion, either directly or as an-indispensable condition. When the explosion happened, there was in operation a thawer capable of heating dynamite to excess, and dynamite was being heated in it. On the very day of the explosion, dynamite had come from this thawer overheated to the stage called “mushy.” Unthawed dynamite, such as the deposit near the shaft, does not readily explode, even with cap and fuse. Dynamite thawed to the degree proper for mining purposes does not commonly explode unless cap and fuse are applied, but dynamite heated to excess may explode from heat alone. No mining operations were carried on in the drift where the thawer was. The appellant had nothing to do with its handling. No one went in or out at that level but the powderman, and he was in the level below when the explosion occurred. After the explosion there was nothing left of the thawer but scattered pieces of wood, and the rock was displaced where it had been. In the absence of a countervailing explanation, and upon the circumstances stated, it is proper to ascribe the explosion to but one source, the thawer, and to but one cause, the overheated condition of the dynamite therein. Whether, thus overheated, the dynamite exploded spontaneously or because susceptible to some impulse otherwise inadequate, it was not necessary for the appellant to show; but it was his privilege to account for the explosion, if he could, in such a manner as to cut off all escape from liability. In his effort to accomplish this, he was met by many adverse rulings, of which — 134 — he complains. There was testimony that the bulbs in the thawer [7] were so situated, with reference to the holes in the shelves, that moisture, if generated in the cabinet, could get to them; that the dynamite was sometimes heated to such a degree as to have moisture upon the sticks; that an electric bulb, when inclosed, may get so hot as to burn wood or set clothing afire; that it can be heated by electricity so that the heat itself will break the glass, or that the glass would be broken by a drop of water striking it; that when a bulb breaks there is a report “sometimes like a 30-30 or a 32 revolver cartridge.” One witness also testified that, heated to the degree it sometimes was by the thawer, dynamite will explode from a jar or concussion such as would be caused by the bursting of an electric light bulb of the same character as those used in the thawer. But other testimony to the same effect was excluded. It is true that the witnesses from whom this evidence was sought claimed-no precise knowledge of the constituents of dynamite, or of the exact, degree to which it must be heated to be thus responsive; but they were all practical miners who had observed and handled dynamite and knew its properties from the practical point of view. Speaking generally, and without reference to those instances in which the rulings may have been justified on strictly technical grounds, we think the testimony was competent and admissible. Whether the collapse of a bulb would suffice to explode dynamite when heated to a degree possible in the thawer, and whether a bulb might reasonably be expected to collapse under the conditions existing in the thawer, were not irrelevant inquiries; for if the collapse of a bulb was a matter to be reasonably anticipated, and if such a collapse would suffice to explode dynamite heated to a degree possible in the thawer, then it was negligence to employ a system in which these conditions might concur; and if they did concur, escape from liability would be impossible. The bursting-bulb theory may or may not be worthy of consideration under the facts as finally established; but to the extent that it might be warrantably credited by the — 135 — jury, it tended to re-enforce the contention of appellant under the allegations in question. Appellant also sought to show by several witnesses who were miners, and who had worked in several mines besides the [8] Keating, that electricity was not elsewhere employed as a thawing agency. This evidence was rejected upon objections by respondents, their theory, as advanced in the trial court, being that the master might select any method he saw fit for the conduct of his business. Needless to say, this was incorrect; the master may select any method which is reasonably safe; and, “while not conclusive on the question of negligence, evidence is generally admissible in an action for personal injuries, to show whether or not a master’s machinery, appliances, ways and methods are such as are in ordinary and common use by others in the same business.” (26 Cyc. 1108; Forquer v. Slater Brick Co., 37 Mont. 426, 97 Pac. 843; Kinsel v. North Butte Min. Co., 44 Mont. 445, 120 Pac. 797.) If, therefore, the complaint had tendered the issue that the use of electricity for thawing, without regard to the manner of use, was negligence, the evidence would have been admissible. But as we read the complaint, it does not charge that it was negligence to thaw by electricity in any event, but to use electricity for thawing in the manner and to the extent employed. Under this construction, the exclusion of the evidence was proper. In another series of questions the appellant sought to elicit the opinions of certain witnesses as to whether, having in view [9] the overheating of’the powder on previous occasions, the method employed for thawing was a safe one. In some instances the witness was not sufficiently qualified, but otherwise there is no force in any of the objections addressed to these questions in the court below. The method in question was the use of electricity in the manner and to the extent employed, and the inquiry was relevant and material; for, although it may be said that, given the facts, the jury could tell whether the method was a safe one, yet it cannot be said that the jury were necessarily as competent to pronounce upon this subject as were some — 136 — of the witnesses whose opinions were rejected. (Coleman v. Perry, 28 Mont. 1, 72 Pac. 42; Copenhaver v. Northern Pac. Ry. Co., 42 Mont. 453, 464, 113 Pac. 467.) Other rulings were made adverse to appellant in the course of the examination of witnesses which are assigned as error. As to them we find that whatever error was committed was' cured by the subsequent admission of the testimony, and so they are of no avail on this appeal. Some space is given in the briefs to the discussion of the ruling admitting, over objection, the testimony of Boulware before the coroner’s jury, and the refusal of the court to strike it out [10] on motion. It could not be stricken in its entirety, for the very reason that it should not have been admitted in its entirety, viz., parts of it—and parts only—-were admissible. The only purpose that any of it could serve was to show that at the inquest Boulware had made statements, touching the accident, at variance with those given on the trial, and such of these as it contained were admissible if denied or if recollection of them were disclaimed (Rev. Codes, sec. 8025) ; but the testimony of Boulware at the inquest contained much matter of opinion, and some of pure hearsay, which in no way tended to contradict the particular facts or opinions given by him upon the trial. The admission in toto of his testimony before the coroner’s jury was wrong, but as the ease did not reach the jury, we are unable to see how the appellant was prejudiced by it. The final question is whether the ease as presented by the appellant discloses assumption of risk. We think not. The only risk which it is claimed he assumed is that of the explosion [11] of the dynamite at the shaft. Whatever the condition of that dynamite may have been, and however likely the explosion from causes within his knowledge, the explosion was not so caused according to the record, and he had no knowledge of the conditions from which it prima facie did proceed. To make a ease of assumption of risk it is not enough that the injured party knew of the thing from which harm might come; he must know and appreciate the danger from which he suffered. — 137 — (O’Brien v. Corra Rock-Island Min. Co., supra; Osterholm v. Boston & Mont. etc. Co., 40 Mont. 508, 529, 107 Pac. 499.) Paraphrasing the language of this court in Moyse v. Northern Pac. R. Co., 41 Mont. 272, 108 Pac. 1062, we may say: He assumed the risk of all dangers incident to the dynamite at the shaft as he saw them; but he had no cause to think, when he went to work at the point above that the dynamite would be exploded by the negligent use of a thawer seventy-five feet away, out of his sight, and with which he had nothing to do. The judgment is reversed and the cause is remanded for retrial. Reversed amd remanded. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.