219 F. 827 | 4th Cir. | 1914
On the morning of March 7, 1913, a large quantity of dynamite exploded on the British steamship Alum Chine lying in the quarantine anchorage of the port of Baltimore on the Patapsco river. The ship was destroyed, more than 30 men were killed and a number injured, and other ships in the vicinity were damaged. The first indication of the disaster was a slight explosion or puff in or near a box of dynamite which Bomhardt, a stevedore foreman, was trying to force into position in a tier of boxes. The District Court heard together the 25 libels filed, and held in an elaborate and strong opinion that the explosion was due entirely to the negligence of the stevedore foreman in loading the dynamite, and not to fire originating in the coal from careless handling or other negligence on the part of the ship crew, and adjudged damages in favor of those who had suffered injury against Joseph R. Foard Company and the General Stevedoring Company as the independent contractors liable for the negligence of the foreman, their employe.
But, even if the usual current of business of the two corporations had been separate, in this instance the contract to load the vessel was with the Foard Company, and the evidence tends to show that it made no separate contract with the Stevedoring Company, but co-operated with and completely controlled it. The two companies, therefore, will
' There was some evidence to the effect that the dynamite was not brought on the ship in the safest way; that the men employed were only the ordinary stevedores, when safety required men specially selected and trained; and that they wore leather shoes, with tacks, instead of the safer rubber shoes. But all this, if true, is not material, for there is no evidence whatever that anything done or omitted by the Foard Company had any connection with the explosion, except the use of a. bale hook and the violent handling of a box of dynamite by Bomhardt. The dynamite was stored tier on tier in a specially prepared framework placed in the hold of the ship on a level surface of coal. It was necessary to fit the boxes closely, so as to guard against the danger in transportation of explosion by concussion. The loading of the entire cargo of 300 tons had been almost completed.
That the first explosion was at or in a box of dynamite when Bomhardt was trying to force it into its place’between two other boxes is proved by the testimony of all the witnesses who had opportunity to observe, including Bomhardt himself. The only variance is as to whether the explosion immediately followed a violent blow on the box with a bale hook, or came after Bomhardt had discarded the bale hook and was trying to force the box in by “marrying” — that is, by placing two boxes in the shape of an A and forcing them down by pressing hard on the apex.
The District Judge has found the overwhelming preponderance with the large number of witnesses who testified that the explosion was ■coincident with a .violent blow with the bale hook, and against Bomhardt and the one other witness who testified that Bomhardt did not have a bale hook when the explosion occurred. No further statement of the facts is necessary to show that this conclusion has not only reasonable, but very strong, support in the evidence, and cannot be disturbed.
There is as little doubt that any violent handling of dynamite or other act producing considerable concussion or friction is dangerous, and, except when required by necessity, negligent. It may be true, as contended, that a bale hook might be used so gently as to be a safe implement; but, since dynamite is known to explode from concussion, it is perfectly plain that the violent striking of a box containing such a destructive explosive with an instrument as heavy and inflexible as a bale hook would tend to prove negligence. Even if the danger of explosion be slight, such an act would still be evidence
It is contended, nevertheless, on the part of the Foard Company, that neither the first nor the final explosion could have resulted from handling or striking the box of dynamite, and that both explosions were due to a fire on the ship originating in some other way. In support of this position it is insisted: (1) That according to scientific opinion the dynamite, being frozen, could not have been exploded by a blow which did not drive the point of the hook through the box to the dynamite, and that it was demonstrated that the point of the hook could not have gone through the box; (2) that, if the fire had originated from a slight explosion of a small quantity of the dynamite, it is scientifically certain that the explosion of the mass would have followed immediately, and not, as it did, after the lapse of 10 or 12 minutes; (3) that these scientific inferences are supported by the testimony of witnesses who saw smoke coming from a different part of the ship after the first explosion.
At the time of the explosion the temperature was 21 degrees Fahrenheit, while the freezing point of dynamite is 52 degrees Fahrenheit. In transportation there had been considerable variation in temperature. Inclosed as it was in paper and packed in close wooden boxes, the more exposed surfaces would probably be frozen, while the protected interior would not. That some of the dynamite was less sensitive, due to freezing or other cause, is indicated by the fact that a considerable quantity was found intact after the explosion. On this the two expert witnesses agree. They also agree in saying that dynamite which has been frozen and partly thawed is peculiarly liable to explode, and that its action is erratic. On this point Dr. Munroe, the expert called by the Foard Company, testified:
“The occasion for that greater sensitiveness of this frozen dynamite which is being thawed lies in the fact of the exudation of the nitroglycerine from the material, so that we have a film with the liquid nitroglycerine upon the surface of the stick, and that liquid nitroglycerine is more sensitive to heat and shock than the compound mixture is.”
Referring to the testimony of some of the witnesses that the explosion broke open the box and sent two nails into the face of one of the men, Dr. Munroe said:
“It is possible for a small portion of the dynamite to have been exploded, and, if the material was frozen, or partly frozen, to set material on fire; but to have been of sufficient amount to have thrown the nails about, so as to imbed them in the person of a man, without producing more profound effect, seems to me almost impossible.”
Then follows this question and answer, on which the Foard Company mainly relies to disprove the explosion from the stroke of the bale hook:
“Q. Suppose there was an explosion which was sufficient — leaving out the nail question for the moment — sufficient to knock three men down who are*832 near the box, state whether it is conceivable that the explosion could come from dynamite in that box without affecting the other dynamite in the box. A. In my opinion it would be most improbable.”
The witness then expresses the opinion that under' the conditions described spontaneous combustion in the coal might have been the cause of the fire and the explosion. The only support in fact that this theory has is the testimony of a number of persons on other vessels that after the first explosion they saw smoke rising from the forecastle, and not from the hatches where the explosion occurred. Considering the volatile nature of smoke, its liability to drift with air currents on the ship, and the distance of the observers from the ship, an inference that the fire originated from the coal would be nothing more than plausible conjecture. It cannot be accepted against the positive and undisputed testimony of many persons on the scene, who saw no fire or smoke, and felt no heat, and who testified that an explosion followed instantly on the violent handling of the dynamite by Bomhardt.
Nor is it possible, in view of this testimony, to draw the inference that the explosion could not have been produced by the blow on the box, and is therefore an unexplained accident, for which no one can be held liable. It is vigorously argued against the District Judge's finding of the act of Bombardt as the proximate cause of the accident that it is opposed to this reasoning by him:
“Theoretically the chances of it so hanpening would be so small as to be difficult of expression in mathematical terms. Nevertheless, there was an explosion. No reasoning can alter that fact, however strongly it may compel us to look elsewhere for the cause.”
This, taken with other portions of the opinion, meant nothing more than that from the standpoint of the expert the chances of such an accident — a blow, a slight explosion produced by the blow breaking open the box, an interval of 10 or 12 minutes, followed by a general explosion, without exploding all the dynamite — would have been regarded, reasoning deductively, almost infinitesimal; but the court must accept the positive and undisputed evidence of many witnesses that it did so occur. The preponderance of the evidence leaves no escape from the conclusion that the proximate cause of the explosion was the violent handling of the dynamite and the use of a bale hook.
It is insisted, however, that the Munson Company cannot avail itself of the rule that the independent contractor alone is liable for damage caused by his negligence: (1) Because by due inquiry it would have ascertained that the Foard Company was not a stevedore company, efficient in the careful loading of dynamite; and (2) because the work was inherently dangerous.
5. It is not easy to state definitely the limitation of the doctrine that an independent contractor, alone is liable for his own negligence which will square with reason or with the numerous authorities on the subject. Manifestly one who contracts for another to erect a nuisance, or to trespass on his neighbor, or to violate a statute, or do any other wrong, cannot escape liability for injury caused by the wrong. This has been held from the earliest cases to Weinman v. De Palma, 232 U. S. 571, 34 Sup. Ct. 370, 58 L. Ed. 733.
We shall not attempt the fruitless task of analyzing and attempting to reconcile the numerous cases passing on the general proposition, so difficult of application, that liability cannot be escaped by employing an independent contractor, where the work is inherently dangerous, unless proper precautions are taken. They have been elaborately discussed in the briefs, and most of them are collated and commented on in notes in 65 L. R. A. 833, 76 Am. St. Rep. 382, and 26 Cyc. 1559. Reason and consideration of the practical results of the various decisions seem to justify this statement as to work inherently dangerous.
The rule that responsibility is on the independent contractor alone does not apply when at the inception of the undertaking a man of ordinary reason should know that in the natural course of things the work would certainly or probably result in injury to another, unless some distinct and definite precautions be taken, although the details of the work be done with due care; as, for example, guarding a hole dug in the street, or protecting buildings close to blasting operations from rocks which would probably strike them, or protecting a wall when excavating by it. But the exception does not extend to work which could be surely performed with safety upon the sole condition that due care be exercised in the details of its execution.
Applying this rule, the Munson Company is not liable. Loading dynamite, gasoline, gunpowder, naphtha, and other inflammable or explosive substances is necessary to commerce and is not a nuisance. The Ingrid (D. C.) 195 Fed. 596, and authorities cited; Ingrid v. Central Railroad Co. (2d Circuit) 216 Fed. 72, 132 C. C. A. 316. There was no distinct and definite precaution to be taken, so as to make sure that due care in the details of the work would make it safe. It was not disputed that dynamite may be loaded with perfect safety, if adequate care be taken against concussion and heat. There was no danger
“Provided, however, that, except in regard to docks and wharves owned by the mayor and city council of Baltimore, nothing contained in any section or provision of this article shall be construed to impose any duty upon the mayor and city council-of Baltimore to any person or corporation using the Patapsco river, or any branch or tributary thereof, in regard to the safety thereof, or to render the said mayor and city council of Baltimore liable for any loss of life or injury or damage to person or property, by reason of any obstruction in, or unsafe condition of, any part of said river or of said branches or tributaries, or either of them.”
A municipality is not liable for things done or omitted outside of its limits, unless the liability (be imposed by statute; and the act of 1912 in terms removed the liability imposed by the act of 1908, under which State of Maryland v. Miller was decided. We are unable to agree with the District Court that this act was invalid under the Constitution of Maryland, which provides that “any law enacted by the General Assembly shall embrace but one subject and that shall be described in its title.” It is true that the title ..of the act refers to some sections of the charter of the city of Baltimore and some of the Code of Public Laws of Maryland under the title “City of Baltimore.” But the one sub
But if invalidity of the act of 1912 be conceded, then we agree with the District Court that negligence cannot be imputed to the city in selecting the place of the accident as a proper one for unloading dynamite. Dynamite being a necessity and its transportation lawful, the community must bear such risk of damage from its transportation as cannot be avoided by due care. It is at least doubtful if any degree of care would result in finding an anchorage in the harbor, reasonably accessible, where the explosion of a cargo of dynamite would not be destructive. Remoteness from habitations and business houses, smoothness of water, freedom from fogs, ease of transfer from car to ship, must all be considered, and due care and sound judgment exercised. The conclusion of the District Court is well supported that under the facts before it the city chose wisely, or at all events that the choice was made by a competent official, acting with due care and in good faith, and that the city incurred no liability.
7. The employés of the Maryland Steel Company claim damages from that company for their injuries on the ground that the company violated its duty to furnish them a safe place to work by anchoring its ship, the Jason, on which they were employed, within 1,200 feet of the
Affirmed.