Opinion
No. 3693.
May 24, 1929. Rehearing Denied May 30, 1929.
Appeal from District Court, Hopkins County; Grover Sellers, Judge.
Suit by Mrs. Lena Harrison, in her own name, and as next friend of Herschel Harrison, against the Jagoe Construction Company, subsequently dismissed as to plaintiff in her own behalf. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial.
As commenced the suit was by appellee Mrs. Lena Harrison in her own behalf and as next friend of her 13 year old son Herschel Harrison against appellant, the Jagoe Construction Company, a corporation. It was for damages for personal injury suffered by Herschel February 12, 1928, as the result of the explosion of a brass dynamite cap or cartridge he picked up near a building in the town of Brashear, in Hopkins county, used by appellant while constructing a concrete public road in said county. Before the trial commenced the suit was dismissed so far as it was by Mrs. Harrison in her own behalf, and thereafter was prosecuted by her only as next friend of her said son. It appeared from evidence heard at the trial that Herschel picked up three cartridges — one on the sidewalk, and two in the street in front of said building. Using a pin, he had loosed the contents of one of the cartridges when another boy, by means of a lighted match, caused the cartridge to explode, injuring Herschel's right hand so as to necessitate the amputation of the fingers thereof. It appeared that in doing the road work appellant sometimes used cartridges like those picked up by Herschel as stated and witnesses testified that on the morning of said February 12 they saw several such cartridges lying on a shelf in the building referred to; later that day, but before the accident occurred, saw appellant moving things out of said building; and still later that day, and after the accident, noticed the cartridges had disappeared from the shelf where they had seen them. It was alleged in appellee's petition that appellant was guilty of negligence in that it permitted the cartridges Herschel picked up "to escape (quoting) from said building and alight upon or about the sidewalk immediately in front of the door of said building." Special issues having been submitted to the jury, they found: (1) That on the occasion in question appellant had dynamite caps or cartridges in its possession and under its control in and about said building. (2) That the cartridges Herschel picked up were some of those they then had in their possession and control. (3) That appellant was "guilty of negligence in permitting (quoting) the dynamite cartridges picked up by the plaintiff to be exposed in and about their building." (4) That such negligence was the proximate cause of the injury Herschel suffered. (5) That $6,000 would compensate Herschel for such injury. The appeal is from a judgment in Herschel's favor for the sum found by the jury.
R. D. Allen, of Sulphur Springs, and Horace C. Bishop, of Dallas, for appellant.
Dial Brim, of Sulphur Springs, for appellees.
(after stating the case as above). The findings of the jury numbered 1 and 2, it will be seen on referring to the statement above, were (in effect) that the cartridges Herschel Harrison picked up were cartridges appellant had in its possession and control; and the findings numbered 3 and 4 were (in effect) that appellant was guilty of negligence which was the proximate cause of the injury to Herschel, in that it "permitted" the cartridges to be where they were when he picked them up. The sufficiency of the evidence to support the findings, or any of them, is not questioned by any of the assignments of error in appellant's brief, nor does appellant complain here, specifically, of those numbered 1 and 2 on any other ground. But it does complain of the action of the trial court in submitting the issues covered by the findings numbered 3 and 4.
As to finding 3, it is insisted the issue it covered predicated negligence of the appellant "upon (quoting) the cartridges being exposed in and about the building of the company." Appellant asserts it had a right to have the cartridges on its premises, and that its having them there "would not be negligence (quoting) unless the same enticed the plaintiff, the boy, upon its premises." That may be true, but whether it is or not is of no importance here, for no such question arises on the record sent to this court. It was undisputed that Herschel found the cartridges, not on appellant's premises, but on a public sidewalk and in a public street on which said premises abutted. That being true, negligence of appellant was not predicable on the fact that it had the cartridges on its premises, but was predicable on the fact, if it was a fact, that the cartridges were on the sidewalk and street because of its failure to use proper care to keep them off of same. In Ry. Co. v. Padgett, 158 Ky. 301, 164 S.W. 971, the court said: "It is the duty of persons who keep in their possession, or employ in their business, that which unless carefully guarded and cautiously used is dangerous to others, to exercise such care to see that the dangerous agency is so kept and used as not to inflict injury upon others as an ordinarily prudent person would be expected to exercise in the use and keeping of such dangerous agency." In Hamblin v. Gano (Miss.) 76 So. 633, a case much like this one is in its facts, the court said: "Persons using such dangerous agencies as dynamite are required to exercise the highest degree of care and caution so as to prevent injuries calculated to flow from the negligent handling of this strange and dangerous agency" — citing 11 R.C.L. 662, where it is said: "The degree of care required of persons having the possession and control of dangerous explosives such as dynamite is of the highest. The utmost caution must be used to the end that harm may not come to others in coming in contact with it." And see McTighe v. Johnson, 114 Miss. 862, 75 So. 600, another case much like this one in its facts, and Mattson v. Ry. Co., 95 Minn. 477, 104 N.W. 443, 70 L.R.A. 503, 111 Am.St.Rep. 483, 5 Ann.Cas. 498, where the rule is stated substantially as it was in the Hamblin-Gano Case.
We think the further contention with reference to said finding numbered 3 that, as framed, the issue covered by it was on the weight of the evidence, in that it was assumed therein that the cartridges were exposed by appellant "in and about" its building, must be sustained. It was undisputed in the evidence that the cartridges were "exposed" in the building, but it did not conclusively appear that it was due, proximately, to any act or omission on the part of appellant that the cartridges were out of but about (meaning near) the building, where Herschel found them. The burden was on appellee to prove that, and we think the jury might have found that appellee had not discharged the burden. That being the case, it was reversible error for the court to assume in submitting the issue to the jury that appellant "permitted" the cartridges to be "exposed" at the places on the sidewalk and in the street where Herschel found them. Ry. Co. v. Hartnett (Tex.Civ.App.) 48 S.W. 773; Casualty Co. v. Hogan (Tex.Civ.App.) 232 S.W. 354.
As to finding 4, it is charged that, as framed, the issue it covered also was on the weight of the evidence, in that it was assumed therein that appellant "failed to prevent the exposure of dynamite caps picked up by the plaintiff." The charge is not supported by the record, which shows the language used by the court in submitting the issue to have been as follows: "Was the negligence, if any, of the defendant in failing, if it did, to prevent," etc.
For the error of the court indicated in what was said about the finding numbered 3, the judgment is reversed, and the cause is remanded to the court below for a new trial.