181 Iowa 504 | Iowa | 1917
Plaintiff is the administrator of the estate of one William Schneiderman, and brings this action to recover damages on account of his death. It is claimed that his death was due to the negligence of the defendant. Schneiderman was killed on the 1st day of December, 1913. His death was due to the explosion of a certain chemical compound while he was in the employ of the defendant.
Defendant was conducting a drug store in the city of Waterloo. The explosion occurred back of what is known as the prescription case, -a place set apart for the filling of prescriptions and the compounding of medicines and other drugs. The interior of the store, at the time of the happening of the accident complained of, i's as shown by the following plat:
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Plaintiffs intestate was employed to work at the soda fountain. It appears, however, that he worked in other parts of the store as occasion required, but never behind the prescription counter. The record discloses that a few times he left his place behind the soda fountain and waited on customers at the cigar case, sold small packages, and sometimes placed drugs and medicines upon the shelves, and also swept the floor and dusted the counters. There is no affirmative evidence that this was in the line of his employment, but he was seen to do these things. He was really employed to serve at the soda fountain, and that was where his main duties were performed. Just before the fatal accident, he was so engaged, and was seen at the ice cream compartment. It appear that he commenced work about six weeks prior to the happening of the injury complained of. At the time he was hired, he was told to work at the soda fountain, and he continued to work there up to the time of his .injury.
There is practically no dispute in the evidence. The facts are as follows': On the day of the accident, an order was received by one John Roberts, a registered pharmacist in the employ of the defendant, for some colored fire. The duties imposed upon Roberts, by his employment, consisted of putting up drugs and compounding prescriptions. The ingredients necessary to make this colored Are were
These facts are undisputed. Upon these facts the plaintiff predicates his right to recover, and says: That the defendant was negligent in that it failed to furnish Schneiderman a reasonably safe place in which to work; that the place became, and was, unsafe because used for the compounding and mixing of highly explosive and dan
We take it that plaintiff’s action rests upon two charges of negligence: (1) That the place in which deceased was required to work was unsafe by reason of the use to which it was put; that the using of the place in which the deceased was required to work for the compounding of explosives was a breach of the duty which the defendant owed to the deceased, and, injury resulting therefrom, such breach of duty was actionable; (2) that, conceding that the place was not rendered dangerous by reason of the use to which it was put, yet, when defendant undertook to compound this dangerous explosive on the premises, it became its duty to exercise great care to protect those in the building from injury from its presence, and that it failed in this duty, and negligently left the compound unguarded and uncared for at a place where the deceased was accustomed to go in the performance of his duty.
The only error assigned is that the court erred in sustaining defendant’s Notion for a directed verdict, and in entering judgment against the plaintiff for costs.
This resolved itself into a law question. The facts are not in dispute.
The defendant was running an ordinary drug store, with all the incidents which attach to modern drug stores,
“The first thing I did in mixing this compound was to weigh out the shellac according to the formula, place it in a mortar and triturate it to a fairly fine powder; that is, I ground it up with a pestle; then I placed the pestle on the right-hand side of the mortar about a foot, and weighed out the sulphur according to the formula, and placed it in the mortar. The sulphur needed no pulverizing. I put the sulphur on top of the shellac in the mortar; then I weighed out the chloride of potassium and placed it.in the mortar. This did not require any powdering. After getting all three ingredients in the mortar, I went up the ladder a few feet back of the prescription case to get one of the other chemicals needed in the formula.”
Professor Bond, called on behalf of the plaintiff, testified:
“I am professor of chemistry in the State Teachers’ College at Cedar Falls. Before that was instructor at Ar*513 mour’s Institute in Chicago for three years; for a short time instructor in chemistry in the State University of Iowa; am familiar with the ingredients used in this particular compound.”
He was asked this question:
“Suppose that one ounce of shellac ground up to a powder and put into a mortar, and on top of this shellac should be poured two ounces of sulphur, and upon the two ounces of sulphur should be poured six ounces of potassium chloride, would or would not the explosion of that substance in the mortar be violent or not?”
He answered:
“It would be violent. Q. What wonld be the most effective agency for producing an explosion if this substance were poured together in the way I have described? A. I suppose a blow or friction. The use of the hammer furnishes the blow, the friction, or both, necessary to, set it off. In case you set fire to this mixture, it burns more quietly. There is not the explosion that comes from a blow or strike. These ingredients are commonly used in tableau lights. If a violent explosion resulted from a mixture of that kind, I would assume that violence or friction had been applied to it in some degree. The mere fact of an explosion would indicate that force or friction had been applied. The mere presence together of these constituents does not produce an explosion. Until disturbed by force or friction, they would remain harmless. I would not expect an explosion merely from these chemicals, in these proportions, standing in an open vessel. It would be an extraordinary occurrence. There would be a remote possibility of an explosion. These constituents taken by themselves are not explosive. They could not be exploded separately. There is a possibility of an explosion without the application of force or friction, but it is very remote. It has been*514 known to explode by mere spontaneous combustion, but that would not be this type of explosion unless the material was confined. It would ignite and burn more slowly.”
Professor Getchell, called by the defendant, testified:
“I have been employed at the Iowa State Teachers’ College for six years as professor of chemistry; am a graduate of the Iowa State Teachers’ College and University of Wisconsin; have occasion to use sulphur and chloride of potassium. The ingredients of this compound by themselves are not explosive. If these ingredients were in a mortar, an explosion would be caused by external force, namely, friction or a sudden blow. The amount of friction used would not have to be pronounced. Rather slight friction would produce an explosion, but the friction would have to be between two hard substances. The application of friction to a substance of this character may be by different methods. Just a blow would produce friction which might cause the explosion, or it might be done by scraping between hard surfaces, something like the scratching of a match, if it was of sufficient force.”
This is all the evidence on this branch of the case.
It is apparent that the defendant violated no duty owed to the deceased, in keeping these ingredients in the store in which deceased was required to work. These ingredients, in and of themselves, were harmless. The danger, if any, arose from compounding them or mixing them together. There is no evidence that there was any negligence in the manner of mixing, or in the method used. They were placed in an open mortar, and would not explode except on the application of friction or a blow from without. The mere presence together in an open mortar would not produce an explosion. Until disturbed by force or friction, they would remain harmless. The mixing was done by one skilled in' the art of mixing.
When Roberts left it on the prescription table and went
“I would not expect an explosion from these chemicals, in these proportions, standing in an open vessel. It would be an extraordinary occurrence. There would be a remote possibility of an explosion. The mere fact of an explosion would indicate that force or friction had been applied.”
At the time Roberts left the compound to go up the ladder, there was no one behind the prescription case. Even an experienced chemist would not expect an explosion from these chemicals.standing in an open vessel upon the table. An explosion would be an extraordinary occurrence. To produce an explosion, there must be force applied from without. Did the presence of this compound on the table, under those circumstances, violate the duty which the defendant owed to the deceased to furnish him a reasonably safe place in which to work? There are few places to be occupied in the world that are not attended with some danger. The dangers to be guarded against are those which are reasonably to be anticipated as a natural and proximate result of the conditions permitted. There is no evidence in this record that explosions such as here complained of had, prior to this time, occurred in this drug store or any other drug store from the mixing of this compound, or that an explosion ever occurred while the compound remained in an open mortar, without the application of force from without. Under this record, in no sense could the store in which’the deceased was working be said to be an unsafe place, except, if at all, during the time this compound was in an open mortar behind the prescription counter. It remained there but a short time, while Roberts turned to secure from the shelf above him an added ingredient for the compound. There is absolutely nothing in this record on which to base a claim that the place was unsafe, except while this compound stood
Under this record, it is clear that the canse of the explosion was one which the defendant conld not have anticipated. When Roberts left tbe compound in the mortar and turned to the ladder, deceased was at the soda fountain.
In the instant case, the defendant had placed a competent and skilled person in the preparation of this conn pound. The 'compound, in and of itself, when handled by a skilled person, was attended with no danger. The compound was being prepared in a part of the store set apart for that purpose. It was in process of preparation at the time the explosion occurred. The work of preparing was yet unfinished. , While it was in process of preparation, and without sufficient notice to the person in charge of the compound, deceased came from his place of duty from a distant part of the store, and, ignorant of the danger and unskilled in the work, voluntarily assumed to aid in its prosecution, and applied the friction or blow which caused the explosion. It would be outside the rule of reason to say that the defendant should have anticipated and foreseen that, in the preparation of this compound, this young man, whose duty was in a distant part of the store and in no way related to the work behind the prescription case, should come, and, without warning, do the thing which alone would produce the results of which complaint is made in this suit. To anticipate such a consequence would be outside the experience of men, and would place a burden upon an employer of skilled labor greater than he could carry. Under the record in this case, no jury could in reason say
There is no evidence of the interposition of any independent producing cause of this explosion, except that which deceased declared it to be his purpose to interpose. When the evidence shows a recognized, rational cause for conditions shown to exist, the mind settles on that at once as a producing cause, and does not speculate as to other causes not shown to exist, even though in speculation the mind is able to grasp the possibility of other producing causes not shown in the record to be present at the time The record discloses that the doing of the thing which the deceased declared it his purpose to do, would produce the explosion. The record shows that, immediately upon his declaring his purpose to do this thing, the explosion followed. The record of his injuries shows that he was present and in a position to do the thing he declared it his purpose to do. There is no rational conclusion to be reached from this record other than that the deceased did exactly what he declared to be his purpose to do, and that
On the whole record, we think the court did not err in sustaining defendant’s motion for a directed verdict, and the cause is therefore — Affirmed.