245 Pa. 467 | Pa. | 1914
Opinion by
Worth Brothers Company is a corporation owning and operating blast furnaces and rolling mills at Coatesville, this State. On January 18,1913, several boys went into a shanty owned by the company and found a box of dynamite in it. They took a portion of this up to the side of a hill, where they built a fire, and one of them threw some of the dynamite into it. As a result of the explosion that followed Emil Gralka, one of the boys— then seven years of age — lost an eye. From the judgments recovered by him and his father against the defendant company — found by the jury to have negligently left the dynamite in the shanty — it has appealed.
The burden was upon the plaintiff below, who sued for himself and his injured son, to show by competent testimony that the defendant had been guilty of the negli
In the spring of 1912 the defendant company constructed a road through a part of its property, and, in the construction of the same, it was necessary to use dynamite for blasting purposes. George Shamonski, called by the plaintiff, testified that he had acted as a labor boss for the defendant in the construction of the road; that he left its employment in June, 1912; that all of the blasting was over at that time, and that seven or eight days before he left he saw a little wooden box in the shanty containing dynamite. Another witness, a former employee of the defendant, called by the plaintiff, testified that all of the blasting had been done in the spring of 1912. There is no testimony that any dynamite was ever seen in the shanty from June, 1912, down to January 18, 1913, nor was there any testimony that, during that interval, the defendant company had used dynamite for any purpose whatever. The boy who found the dynamite in the shanty on January 18, 1913, testified that it was in a paper box, and the case went to the jury under the following instruction: “How will you
The mere finding of the dynamite in the shanty on January 18, 1913, was not in itself, under the circumstances stated, evidence that the defendant was responsible for its being there. Indeed, we do not understand that learned counsel for appellee so contend. How it got into the shanty does not appear, but it does appear that for months that building, with its doors and windows at all times open, had been frequented by all sorts of people. Some of them may have carried the dynamite into it; but whether this be so or not is not the question in the case. It was upon the plaintiff to show that the defendant had put or left it there, and the only evidence in support of this material fact was that, in the preceding spring, the appellant had used dynamite for blasting purposes in the vicinity of the shanty, and that seven months before the boys went into it one of its employees had seen in it a little wooden box containing dynamite. The dynamite which the boys found long afterwards — on January 18, 1913 — was in a paper box, and the boy who found it — fifteen years of age when he testified, less than a year afterwards — admitted that he had never seen it before that day, though he had been in the shanty only the day before; and he further said, in reply to a question put to him by the court, that if it had been in the shanty on the previous day he would have seen it.
After the most careful review of all the testimony submitted by the plaintiff, we can find nothing in it which justified the finding that the dynamite which was in a little wooden box in the shanty in June, 1912, was the same that was found by the boys in a paper box in the following January. In this connection it may be proper to say that it nowhere appears, as counsel for appellee state in their printed argument, that after the accident the appellant claimed as its own the dynamite left in the