LIABILITY FOR. DAMAGE TO PROPERTY FROM THE ACCIDENTAL EXPLOSION OF DYNAMITE.

Court of Appeals for Ottawa County.

#### The American Gypsum Company v. Lake Shore & Michigan Southern Railway Company.*

Decided, April 27, 1917.

*Explosive Substances—Accidental Explosion of Dynamite—In an Enterprise Where it is Used Regularly—Liability Must be Based on Evidence of Negligence—Measure of Damages to Property Injured—Use as Evidence of Answers to Interrogatories—Interest on Judgment—Charge of Court.*

1. A company engaged in mining gypsum in which business it uses large quantities of dynamite is not liable for damages caused by the explosion of a quantity sufficient for its use for the day while being prepared for such use in a thaw house, in the absence of evidence of negligence.

2. It is error in such case to refuse to instruct the *jury that*if the explosion was the result of pure accident and without fault on ' the part of anybody the verdict must he for the defendant.

3. The measure of damages where railroad cars are injured by an explosion is not the amount expended in repairs, but the difference between the value of the cars immediately before the damage and their value immediately thereafter.

4. By virtue of the provisions of Section 11350, G. C., a party answering interrogatories annexed to a pleading may introduce his own answers in evidence, so far as they are responsive to the questions propounded, and contain competent testimony on the issues joined.

5. In cases where a verdict is returned but judgment is not rendered thereon until a subsequent term of court, the judgment should provide for interest from the first day of the term at which the verdict was returned, unless the action was brought during that term, in which event the judgment should draw interest from the date the verdict was returned.

*True & Crmvford,*for plaintiff in error.

*Graves, Stahl <& Duff,*contra.

*

Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, July 3, 1917.

*482Richards, J.

Error to the court of common pleas-.

The American Gypsum Company is engaged in the mining of gypsum and the preparation, storage and shipment of gypsum products in this county, and was defendant in the court of common pleas in an action 'brought to recover damages for the destruction and injury of certain cars owned by and in the custody of the Lake Shore & Michigan Southern Railway Company. These cars, on March 22, 1911, were on a side-track extending along and over the property of the gypsum company and were on that date damaged by an explosion of dynamite situated in a small shanty called a thaw house, owned and used by the gypsum company.

The trial resulted in a verdict and judgment in favor of the railroad company in the amount of $964.67, and to reverse the judgment so rendered this proceeding in error is brought in this court.

The record discloses that in the manufacture of gypsum products the gypsum company uses large quantities of dynamite, purchasing the same by the car-load containing some eighteen thousand pounds, and that the explosive so purchased is stored in a magazine on the premises of the company located approximately two thousand feet from the thaw house, which thaw house is near the track of the railroad company. The storage magazine itself did not explode, but the damage was caused from an explosion in this small structure used for thawing the dynamite. 'The evidence is not clear as to whether any other structures were in the immediate vicinity of the place where this thaw house was erected.

The testimony indicates that dynamite freezes at a temperature of forty, to fifty, degrees Fahrenheit, and the practice of the company was to remove from the magazine to the thaw house a box of dynamite containing fifty pounds, so that the same might be thawed and made ready for use by the company during the day or night that it was so removed. The company used in its business two shifts of workmen, and this dynamite had been removed a few hours before the explosion and placed in this building for the purpose indicated. In the morning the practice was *483to bring in what dynamite was necessary for use during the day shift, and then again in the evening another quantity was brought in sufficient for use by the night shift. The thaw house was about six feet by eight and approximately six feet in height, It had galvanized siding and the roof was made of roof boards covered also with galvanized siding. Inside this building was, a steam radiator used for the purpose of thawing the dynamite, the steam pipe coming from the boiler house two hundred feet distant. In front of the radiator was a wire cloth extending from the floor to the ceiling so as to prevent any dynamite coming in contact with the radiator. The practice was that after the dynamite had become sufficiently thawed it was carried away by the shot firers to the mine and there used.

So far as the record discloses, the cause of the explosion was unknown, and the vital question arising is whether liability exists on the part of the gypsum company under the circumstances stated and in the absence of negligence.

All the dynamite used by the company was shipped in over the tracks and along the siding of the railroad company and from there hauled to the storehouse from which it was removed as needed in the operation of the company’s business to the thaw house and from thence to the mine.

'The trial judge charged the jury following the lines indicated by the language of the Supreme Court in *Bradford Glycerine Co.*v. *St. Marys Woolen Mfg. Co.,*60 O. S., 560, that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, which includes nitroglycerine or dynamite, if it escapes or explodes, must keep it there at his peril, and when he does so he is *prima facie*answerable for all the damage that is the natural result of the explosion.” He further stated to the jury in that connection that the defendant could excuse itself only 'by showing that the explosion was due to the plaintiff’s fault, *and that it has used ordinary care in the handling and use of the dangerous*matter¿ or the act of God. Of course, the latter part of the charge mentioned is clearly wrong in that if it appeared that the explosion was due to plaintiff’s fault, the defendant need not in addition show that it used ordinary care in the handling and use of the. dynamite.

*484This criticism, however, does not dispose of the vital question involved in this case, and that is, whether the rule of liability for the explosion of nitroglycerine announced in the decision of the Supreme Court to which reference has been made is applicable to the explosion of dynamite under the facts shown in this record. In the Bradford Glycerine Company case there were at the storage magazine, including the quantity being placed therein, more than seven hundred and fifty quarts of nitroglycerine, and the building was used, as its name indicates, for a place *oí*storage. In the case now under consideration the explosive was dynamite, the evidence showing the explosive ingredient in which is nitroglycerine, and that the strength of the dynamite used by this company was only twenty per cent. It further appears that in the manufacture of dynamite when carefully and properly prepared, it is much less liable to explode from accidental causes than is nitroglycerine, which is in a liquid form while the dynamite is a solid. Furthermore, the amount of the explosive was only fifty pounds or a little more, and if we compute only the weight of the explosive ingredient it would be a little more than ten pounds; and the evidence introduced tends to show that the amount of explosive in the thaw house at any one time was only that which would be reasonably sufficient for use in the operation of the mines for a portion of one day and for the reasonable conduct of the defendant’s business. The record discloses that, although the company in the conduct of its business at this place has used over one hundred cars of dynamite of eighteen thousand pounds each, it has never heretofore had an accidental explosion.

Under these circumstances, and after a painstaking investigation of the authorities, this court is not able to apply to this case a rule that would hold the gypsum company liable without evidence showing negligence on its part. The Supreme Court said in the Bradford Glycerine Company case, already cited, that nitroglycerine was recognized as a constant menace to the property in its vicinity. The evidence in the ease we have under consideration would scarcely authorize the conclusion as to dynamite. At any rate it would go no further than raise a question for submission to the jury, under proper instructions, whether *485the practices of the company in thawing and handling of the dynamite were such as to constitute a constant menace to property.

'The question was under consideration by the Supreme Court in *Louden*v. *Cincinnati et al,*90 O. S., 144, which was a case to recover damages resulting from the use of explosives in blasting. In that ease the Supreme Court, speaking through Donahue, J., use this language:

“The question presented is whether the owner of property may make use of high explosives on his own premises in the accomplishment of a lawful purpose, provided he uses due care, notwithstanding the necessary, natural or probable result thereof is to injure or destroy adjacent property.”

The rule indicated by the question propounded is an aid in determining whether the use of dynamite in the case at bar, in the exercise of due care, was such as to necessarily, naturally or probably result in the destruction or injury of adjacent property, and to be a constant menace thereto. It surely can not be stated, as a matter of law, that the handling of dynamite, under the circumstances disclosed, would come within the condemnation of the court as indicated in the two cases cited, but rather that its handling, as disclosed by the evidence, would raise a question of fact to be determined by the jury. In view of the very general use of dynamite as a commercial product, we are unable to apply, under all the circumstances, the rule announced by the Supreme Court in the Bradford case as applicable to nitroglycerine. One of the purposes in the manufacture of dynamite is to render the nitroglycerine used therein safer to handle, as well as more convenient, and in the. accomplishment of that purpose various percentages of nitroglycerine are used in dynamite; but -it will not do to say that because nitroglycerine in its liquid form is highly i dangerous and a constant menace to adjacent property, that all grades of dynamite, no matter hGw small the percentage of nitroglycerine therein, come within the language used by the Supreme Court in the ease to which reference has been made. One of the prime objects for manufacturing dynamite is to provide a less dangerous explosive than *486nitroglycerine, and to further that purpose nitroglycerine is mixed with some solid and absorbent inert substance such as sawdust, wood fiber, charcoal or a silicious earth, as is stated in the Encyclopedia Britannica. In defining the qualities of dynamite the Century Dictionary says that “The object of the mixture is to diminish the sensitiveness of nitroglycerine to slight shock, and so to facilitate its carriage without impairing its explosive quality.”

In a case where the evidence is such as is contained in the record .under review it must be left to the jury, under appropriate instructions, as to the liability of the company, and in determining this question the location and method of construction of the thaw house, the quantity of dynamite placed therein, the means employed to accomplish the thawing, and all other facts and circumstances bearing on the question of care or the want thereof by the company should be considered.

The most recent and exhaustive discussion which we have seen of the questions involved in this case may be found in 11 Ruling Case Law, beginning at page 651. An interesting case, fully annotated, shedding light on these questions is *Henderson*v. *Sullivan,*16 L. R. A. (N. S.), 691, 159 Fed., 46. A ease involving a kindred question was carefully considered -by the Supreme Court of Alabama and is entitled *Whaley*v. *Sloss-Sheffield Steel & Iron Co.,*51 Southern, 419, 164 Ala., 216.

See also *Barnes*v. *Zettlemoyer,*25 Texas Civil Appeals, 468, 62 S. W., 111; *Derry Coal & Coke Co.*v. *Kerbaugh,*222 Pa. St., 448, 71 Atl., 915; *Mayer*v. *Brudno,*16 C.C.(N.S.), 102.

In view of these authorities the language of the trial judge on the subject of liability constitutes prejudicial error.

On this same subject the gypsum company asked the trial judge to instruct the jury before argument, that if they found the explosion was the result of pure accident and without fault on the part of anybody, the verdict must be for the defendant. The court refused to so instruct the jury and in so doing committed prejudicial error.

The evidence introduced on the subject of damages related solely to the amount paid for repairs on the cars. The true measure of damages would not necessarily be the amount paid *487for repairs, but would be tbe difference between the value of the ears immediately before the damage and their value immediately thereafter. The reasonable cost of repairs may often shed light upon the extent of the damage and thus be competent evidence, but it is only competent as tending to show the difference in value of the cars before and after the explosion. It is manifest that in some cases ears after being thoroughly repaired might be less valuable or they might be more valuable than before they suffered damage, and this clearly shows that the reasonable value of the repairs may not indicate the actual damage. The charge of the court does not touch the subject of damages, but on a retrial of the case the rule indicated, that the true measure of damages is the difference in the value of the cars before and after the explosion, should be adopted.

The answer filed by the gypsum company contains various interrogatories to be answered by the railroad company. These interrogatories were answered in writing by that company under oath, and the paper containing the answers filed in court. On the trial of the case the railroad company offered in evidence its own answers to the interrogatories, and these were received, over the objection and exception of the gypsum company, except as to number two, which answer involves a conclusion. The General Code provides in Section 11350 that such answers, so far as they contain competent testimony on the issues, may be used by either party. The plain language of this section authorized the railroad company to introduce these answers as a part of the testimony in the case, in so far as the answers did not go beyond the interrogatories propounded. In the judgment of this court the answers were properly received except the latter portion of the answer to interrogatory number four, which answer contains matter not called for by any interrogatory.

The verdict was returned at one term of court and the judgment thereon not rendered until a later term, the trial court refusing to provide in the judgment as rendered that interest should be computed from the first day of the term at which the verdict was returned. This constitutes error to the prejudice of the railroad company, which has filed a cross-petition in error in this case. In cases where judgment is not rendered at the *488same term as the verdict is returned, the judgment creditor is not, by the delay of the court in rendering judgment, to be deprived of his right to interest and the judgment should, therefore, provide for interest from the first day of the term at which the verdict was returned, unless the action was brought during that term, in which event interest would be computed from the return of the verdict.

The petition filed in the common pleas court claims interest from the date of the damage to plaintiff’s property. In a case resulting in damage to personal property where the plaintiff is found entitled to recover, he is also entitled to interest to be computed from the date he suffers the damage. In personal injury cases, as this court has heretofore announced, interest is not properly allowed as such, but even in cases of that kind the lapse of time may be taken into consideration in assessing the damages to be awarded.

The judgment will be reversed and the cause remanded for new trial.

Chittenden, J., and Kinkade, J., concur. .