121 Tenn. 715 | Tenn. | 1907
delivered the opinion of the Court.
This is an action for damages for the death of Burchel, intestate of defendant in error, caused by a premature dynamite explosion in the construction of the Knoxville, Lafollette & Jellico Railroad. There was verdict and judgment in favor of defendant.in error for $1,650, and plaintiffs in error have appealed and assigned errors.
At the conclusion of the evidence of defendant in error before the jury, plaintiffs in error moved for instructions in their favor; this was refusedthe motion was-reneived at the conclusion of all of the evidence, and was refused. The second assignment of error is to this action of the trial judge.
It is averred that the intestate of defendant in error was a minor, inexperienced, and uninstructed in the handling of such explosives, and not acquainted with the dangers incident thereto; that it was the duty of the boss or foreman to superintend their use, which he undertook to do; and on account of his negligence in this particular, said intestate lost his life.
It is further averred that large quantities of dynamite were negligently exposed by the foreman, without sufficient safeguard, near the place where said intestate was at work; that the foreman knew defective and improper instruments for the purpose of tamping, packing, and removing the dynamite, and used same in a negligent manner, producing a premature explosion of a small quantity of dynamite, causing the explosion of a large amount negligently placed near, resulting in the death of said intestate.'
Plaintiffs in error were excavating a cut in the construction of the railroad. The work was begun on each side at the same time. J. H. Burchel, the father of said intestate,.as foreman or boss, was in charge of one crew of hands beginning on one side, and Hugh Jordan was in charge of the crew beginning on the other side, and they had worked up to within about six or eight feet of meeting. J. R. Johnson, known as the “walking boss,” had the supervision of both crews, and employed the bosses or foremen, the latter having the right to employ hands under them, and to discharge them.
The cut upon which they were at work was about forty-five feet deep, and they had to make the excavation through limestone rock and dirt. Dynamite was the explosive used. The foreman had charge of the dynamite, and gave instructions as to its use. If he did not handle it himself, it was his duty to have a safe, reliable man to do that; but its use was directed under his personal supervision.
Dynamite is in sticks about ten inches long, weighing a half pound. When the whole is ready for the blast to be made, the number of sticks necessary are placed therein; a wooden stick or pole about one inch in diameter and from seven to ten or twenty feet long, as may be needed, is used to tamp the dynamite and settle it down in its place. This tamping should be done very lightly. The cap, or fuse, or explosive, is then put in, then some tamping, and the dynamite is ready for the battery to be applied. It is the duty of the foreman to load the hole. Where he does not do it personally himself, he should provide a safe man for the purpose, and should superintend it.
There is some conflict in the evidence as to the exact cause of the explosion, or the manner in which it occurred. The witness Ridenour was engaged in laying the track upon which to run the .cars for carrying out the dirt and rock. There was some rock in the way of laying the track, and Burchel, the foreman, ordered the witness to dobe it, to get dynamite and place mud blasts
A case contains fifty pounds of dynamite, or one hundred sticks. The mud blasts referred to were prepared by placing the sticks of dynamite on the rock and putting mud on them. Burchel, the foreman, had used a bar in jobbing down in the holes or crevice of the rock ¡to prepare the place for the dynamite. After he had placed some of the sticks in the hole, he picked up a wooden stick some larger than a hoe handle, cut for a tamping stick, which was about seven feet long. The witness says he was punching or jobbing “pretty hard.”
The foreman should have had removed to a safe distance the case of dynamite, while he was doing what is above stated, but it was not done. He called for a cap and fuse, and as he turned to the mud blasts, there was an explosion, as result of which the intestate of defendant in error was killed, and three others, including the foreman. There was evidently a premature explosion of’ the small blast which caused the explosion of the dynamite in the case.
If we have not the positive, direct evidence that the foreman was guilty of the particular act of negligence, and evidence to show what that act was, like any other act of negligence, it may be proven by circumstances. The foreman lost his life by the explosion, as did three of the bystanders. He and some of these were they living, could furnish the evidence. ' As they cannot speak, we will have to look elsewhere.
Dynamite is an exceedingly dangerous' explosive, it requires very great care in the handling of it, both in loading for the blast and in adjusting the cap, and should never be undertaken save by one who has had experience and is careful and cautious. It is shown that this foreman was a man of the most reckless character; reckless of his own life and that of others in the use
He was a violent, overbearing, dictatorial, profane man. He was exceedingly reckless and careless in the use of explosives, was in the habit of smoking his pipe while handling large quantities of powder; had frequently put off blasts without warning his men, and would curse and abuse his men for being so afraid to die.
There were one hundred sticks of dynamite in the case. The witness Ridenour had used twelve of these to make the mud blasts. This left eighty-eight, of which the witness says the foreman had put into the hole where he was jobbing but very few, he thinks not over three or four sticks, and the rest were still in the case. There was evidently the initial explosion of the smaller quantity which produced the jar and caused the explosion of those in the case. Just precisely how it was done cannot be proven, because all of the eye-witnesses were killed. Some of the witnesses say that sometimes a very slight jar will cause an ex
Evidently something was done which should not have been done that caused the premature explosion. Whatever it was,'it was done by Burchel, the foreman. It would have been strong evidence in favor of plaintiff in error that the explosion occurred from some unknown cause, by some unavoidable accident that could not have been provided against, had he been the prudent, careful, and cautious man which the occasion imperatively demanded. But he was not. In addition to being a reckless man in the use of dynamite, he was evidently under the influence of strong drink, and had been guilty of reckless conduct immediately preceding the explosion; so the jury thus had some evidence, and some very material evidence, from which to conclude that the explosion was caused by the negligence of the foreman.
In addition to this, when the hole is prepared for the blast, it is proper to bring from the magazine only the number of sticks of dynamite that may be reasonably needed for the purpose, and they should not he brought until the hole is ready. If more be brought than is found to be needed, the excess should he removed before the blast is made, as it is very dangerous to have other
In this instance Burchel had the whole box or case brought out before he was prepared for the blast, although he evidently knew that but a few sticks would be needed; this was negligence, and the presence of this case, when the explosion occurred, caused the death of the intestate.
What is above said does not conflict with the rule in Railroad v. Lindamood, 3 Cates, 457. In that case there Avas an injury to the brakeman claimed to have been caused by a defective brake, but there was no proof that the brake was defective. The witnesses were permitted to say that they presumed a defect in the brakestaff, because in its turning, it lurched and jerked. And on this presumption, they then infer that it would not have done so, save for the existence of one of the defects alleged in the declaration or some other defect; and it is said:
“Inferences may be drawn from established facts, but never from mere presumptions. 2 Whart., Ev., section 1226. As said by the supreme court of the United States in U. S. v. Ross, 92 U. S., 381, 23 L. ed., 707, these were ‘.inferences from inferences; presumptions resting on the basis of another presumption. Such a*727 mode of arriving at a conclusion, of fact is generally, if not universally, inadmissible. . . . Tbe law requires an open, visible connection between tbe principal and.evidentiary facts and tbe deduction from them, and does not permit a decision to be made on remote inferences.’ ”
Such is not tbe case at bar. There is no proof that tbe dynamite was defective; on the contrary, it is shown to have been purchased from reputable manufacturers, and that tbe master bad done bis duty in this particular.' It is not left simply as a matter of inference that the explosion occurred through tbe negligent act of tbe foreman. In addition to tbe proof of bis previous reckless character and habits, and tbe facts that be was evidently more or less under tbe influence of strong drink at tbe time, just tbe moment before be was- guilty of negligent acts which were liable to produce a premature explosion. These were “established facts,” from which, together with all of tbe circumstances and proor, tbe legitimate inference could be drawn that be was guilty of tbe negligent act which caused tbe explosion, although no living witness saw it. This is strengthened by tbe proof of positive negligence in having so much dynamite near tbe place where tbe blast was being prepared.
It is shown, as above stated, that Burcbel, tbe foreman, was a drinking man, exceedingly reckless. His character and habits were well known to Johnson, the walking boss and superior of the foreman, and were
It is argued by plaintiff in error that these matters were "well knowra to the intestate, who was his son; and having this knowdedge, and continuing in the service, he will be held to have assumed the risk.
The boy was three months less than sixteen years of age; of course under the influence of his father,- and was evidently dominated by such a man as he is proven to have been. It is averred in the declaration that the boy was ignorant of the use and danger of dynamite; and there is evidence tending to show that his father had given no instructions to him along this line. It would surely be too harsh an enforcement of the rule to repel the child for failure to distrust his natural protector, especially when he sees that his father, notwithstanding his reckless conduct and habits, had the confidence of his employers.
It is next insisted that defendant in error cannot recover, because the father survived the intestate, and being sole beneficiary, the entire cause of action abated, and that the surviving mother, brothers and sisters of the intestate, have no right of action. , This is a part of the assignment of error which we are now considering; it is included also in the sixth assignment of error, which is to the charge of the court on the subject, as follows; “But when the proof shows that two persons
The- evidence before the jury as to which survived, the fáther or son, is conflicting. There is, however, ample evidence to sustain the verdict that the two perished at the same time; there is thus presented the question of the right of defendant in error to maintain the action.
There is a carefully prepared note to the case of Policeman’s Ben. Assn. v. Ryce, 104 Am. St. Rep., 210, in which quite a number of authorities on the subject are cited, among them, the following: “At common law there is no presumption of survivorship in case of persons who perish by a common disaster, and in the absence of evidence from which survivorship can be determined, it will be presumed, for the purpose of settling rights to property, that all persons, of whatever age or sex, perishing in a common disaster die at the same time, as the common law does not .under any circumstances, even in the case where two or more perish of the same calamity, indulge in any' presumptions of survivorship resting upon consideration of age or sex. Balder v. Middeke, 92 Ill. App., 227; Middeke v. Balder, 198 Ill., 590, 92 Am. St. Rep., 284; Russell v. Hallett, 23 Kansas, 276; Newell v. Nichols, 75 N. Y., 78, 31 Am. Rep., 424; Cook v. Caswell, 81 Texas, 678, 17 S. W., 385.
“It is a general rule that if husband and wife are shown to have perished in the same calamity, nothing appearing to the contrary, there is no presumption of*731 survivorship, but it is presumed that both died at the same moment. K. & P. Ry. Co. v. Miller, 2 Colo., 445; Fuller v. Linzee, 135 Mass., 468.
“If husband and wife die together on the same night from escape of gas in the room, there is, in the absence of evidence upon the point, no presumption that one survived the other. Southwell v. Gray, 35 Misc., 740, 72 N. Y. Supp., 342.
“If a mother and her infant son perish in a common catastrophe, and there is no evidence as to which perished first, there is' no presumption of survivorship, but it will be presumed that both perished at the same time. Steinde v. Goodrich, 3 Ref. Surr. 87. The samé presumption prevails as to mother and child, regardless of age or the sex of the child. Moehring v. Mitchell, 1 Barb. Ch., 264; Russell v. Hallatt, 23 Kan., 276.”
In Yol. 22, Ene. Law, pp. 1251-2 (2nd Ed.), the.rule on this subject of survivorship, in common disaster,both at the civil law and at the common law is stated. The author thus states the common law rule: “The rule of the common law, as now established in England and as recognized in the several jurisdictions in the United States where the question has arisen, is that where persons perish in a common disaster, no presumption of survivorship arises from their strength, age, or' sex, and the party claiming such survivorship of one or the other of such persons must prove it, and in the absence of such proof, the. rights of property as by succession, etc., are to be settled on the theory that all died at the same time.”
In that case, Mrs. Rhodes, a corpulent lady fifty-two years of age, with her son twenty-two years of age, and a good swimmer, perished in the sinking of the steamer “Elbie.” Even under these circumstances, in the absence of other proof, it is held to be the presumption that both perished at the same time.
In the case of Re Willbor, 20 R. I., 126, it is held that in case of death by the same disaster of sisters who left wills in each other’s favor, with no circumstances appearing from which it can be inferred that either survived the others, the rights of succession to the estates will be determined as if death occurred to all at the same moment.
There is an elaborate note to this case reported 51 L. R. A., 863, citing the rule at the civil law and, at common law, by the English and American cases, con
The jury by their verdict, having found that the father and son perished at the same time, the right of action for the death of the latter survived to the mother, brothers and sisters. It results that the assignment of error now under consideration is overruled.
Other questions are made by other assignments, but what is above said is decisive of the case.
There is no error in the judgment of the circuit court, and same is affirmed, with costs.
Mr. John H. Henderson, of Franklin, Tennessee, was appointed and duly commissioned by the governor, April 8, 1907, to sit as special judge during the «ickness of Mr. Justice Wilkes, and served as special judge until the death of Mr. Justice Wilkes, on the 2d day of February, 1908.