#### Davis *v.*The Somers-Cambridge Company.

*Employe in position of danger*— With *respect to dynamite magazine —Can not recover damages, when*— Employe *held to have assumed risk*— Negligence—Master *and Servant.*

An employe who, knowing and appreciating the risk, voluntarily places himself in a position of danger with respect to a dynamite magazine located on the premises of his employer, can not recover for personal-injuries occasioned by the accidental explosion of said magazine without fault on the part of the employer, although such employe may not have known and realized all the possible consequences of the danger, or the precise extent and character of the injuries he would sustain in the event of an explosion. He will, under such circumstances, be held to have assumed the risk of all injury that might reasonably be expected to result to him as a consequence .of such accidental explosion.

(No. 9822

Decided October 30, 1906.)

Error to the Circuit Court of Guernsey County.

*216Suit was brought in the Court of Common Pleas of Guernsey County, Ohio, by Clinton Davis as plaintiff, against The Somers-Cambridge Company, defendant, to recover damages for injuries which he claimed to have sustained as the result of an explosion of dynamite upon the premises of the defendant company. The SomersCambridge Company was and is a coal-mining company, duly incorporated under the laws of Ohio, and at the time of the injuries complained of by plaintiff was the owner of certain real estate near the village of Senecaville in Guernsey county. On June 20, 1903, said coal company was engaged in sinking a vertical shaft on said premises to be used as the opening for a coal mine. The area of this shaft was twelve by twenty-four feet and the work of sinking' the same beg'an about the middle of February, 1903, and continued until June 20th of the same year, at which time the shaft had reached a depth of one hundred and sixty-five feet. In the sinking of this shaft at the depth of thirty-nine feet rock was encountered, and thereafter in the further prosecution of the work, for the purpose of loosening and getting out this rock, blasting was resorted to. The materials used by the company for blasting purposes were blasting powder, dynamite in cartridge form, and detonating caps. The dynamite used was of the kind ordinarily used in sinking such shafts and was what is familiarly known as “forty per cent, dynamite.” That is, dynamite forty per cent, of which is nitro-glycerine. This dynamite was received by the company in boxes containing one hundred sticks, each stick weighing one-half pound, and when *217received was, with the other explosives above mentioned, stored by the company in a frame structure set upon the level ground about one hundred and ninety feet distant from the mouth of the shaft. At the time of the accident there was in this storehouse a quantity of dynamite, the exact amount of which is in dispute by the evidence, the quantity being variously estimated by the witnesses, from a small amount, to about three thousand pounds. Contemporaneously with the sinking of such shaft, said coal company was also engaged in erecting upon said premises certain structures and buildings for use in connection with said shaft when the same should be fully completed. The plaintiff, Davis, prior to and at the time of the accident, was employed by the coal. company as a “helper” or “tender” to the stonemasons engaged in work on these buildings. He had then been in the employ of the coal company for a period of about four months, and he knew the location of this magazine or storehouse and the nature of its contents. On June 20th, I9°3 — day of the accident — the stonemasons were not at work, but Davis had come -upon the premises for the purpose of learning whether or not on that day there would be work for the masons and helpers including himself. While he was yet there a thunder-storm suddenly came up and he, with certain other of the workmen, took shelter in a blacksmith shop located about one hundred feet distant from the storehouse or magazine in which the company kept its supply of dynamite. During the storm by a bolt of lightning, or from other accidental cause, the contents of this magazine - was exploded. As a result of *218this explosion Davis was seriously injured. On the trial of this cause in the court of common pleas at the conclusion of the plaintiff's evidence, and again at the conclusion of all the evidence, the coal company moved the court to direct á verdict in its favor. These motions were each overruled and thereupon counsel for the company presented to the court certain requests to charge which they asked the court to give before the arguments. These also were refused. Exceptions were preserved by the company to the admission and exclusion of evidence during the trial and to the giving of certain instructions requested by the plaintiff. The jury returned a verdict in . favor of the plaintiff for $3,500 and judgment was entered thereon for that amount. The company duly filed its motion for new trial, which being overruled, it prosecuted error to the circuit court. The circuit court reversed the judgment of the court of common pleas and rendered a final judgment in favor of the coal company. To obtain a reversal of this judgment of the circuit court the present proceeding in error is prosecuted.

*Mr. Robert T. Scott*and *Mr. Fred. L. Rosemond,*for plaintiff in error.

In a case *(Shackle*v. *Ohio River & Western Ry. Co.,*75 Ohio St., *infra),*unreported, the law applicable to a record in this state was examined at some length and numerous decisions of this court, and some from other states, were cited and quoted from. Before this case is decided the matter will have been submitted to this court, if not *219disposed of, and hence it does not seem necessary here to do more than cite the authorities and state our claim.

It was error for the circuit court to so adjudge unless “the verdict is so clearly unsupported by the weight' of the evidence as to *indicate*some misapprehension, or mistake, or bias, on the part of the jury, or a wilful desregard of duty”; unless “the preponderance against the finding be clear, obvious and decided”; unless it clearly appears that the finding was *not*sustained by the evidence given at the trial”; or “except upon clear and satisfactory showing that the judgment was wrong.” *Cleveland, etc., R. R.*v. *Crawford, Admr.,*24 Ohio St., 631; *Marietta & Cincinnati R. R.*v. *Picksley,*24 Ohio St., 654; *Ide*v. *Churchill et al.,*14 Ohio St., 372; *Williams*v. *Urmston et al.,*35 Ohio St., 296; *Reed*v. *Board of Education,*39 Ohio St., 635; *Landis*v. *Kelly et al.,*27 Ohio St., 567; 2 Labatt, Master & Servant, Section 330.

That Davis was rightfully on the premises is, beyond doubt, both averred and proved. That a great quantity of a highly dangerous explosive was .stored within a short distance of his rightful position, endangering him, was averred and proved. 'Under such circumstances the company is liable for the injury due to the ensuing explosion irrespective of negligence, and without negligence being averred or proved. *Bradford Glycerine Co.*v. *St. Mary’s Woolen Mfg. Co.,*60 Ohio St., 560.

When one collects on his own land an explosive in such manner that it is a nuisance *per se,*this is negligence *per se;*and he is liable as an insurer for damages proximately caused by its explosion, irrespective of the degree of care used concerning *220it. i Thompson, Comm. Negl., Section 758; 2 Shearman & Redfield, Negligence, Section 689; *Heeg*v. *Licht*(N. Y.), 36 Am. Rep., 654; *Laflin & Rand Powder Co. v. Tearney*(Ills.), 7 L. R. A., 262; *Tissue*v. *Baltimore & Ohio R. R. Co.*(Pa.), 56 Am. Rep., 310.

And what is a nuisance *per se,*within this rule, is for the jury to .decide as a fact.

Collecting upon one’s own land a substance subjecting others to constant danger is a nuisance *per se.*1 Thompson Comm. Negl., Section 758, note 1.

A powder magazine is such. 16 Am. & Éng. Ency. Law, page 937.

A powder house in a populous neighborhood, outside corporate limits, was exploded by lightning, and the owner was held liable to those injured. *Cheatham*v. *Shearon*(Tenn.), 55 Am. Dec., 734.

A building containing explosives was accidentally fired, and the ensuing explosion cast burning brands upon neighboring property, firing and destroying it, all without the fault or negligence of the owner of the explosives, but he .was nevertheless held liable. *Rudder*v. Koopman, *et al.*(Ala.), 37 L. R. A., 489; see note, 29 L. R. A., 718-21.

But it is said that this rule is intended. to be confined to strictly parallel cases, and does not extend to injuries to person, or to injuries to a servant. We submit that other deliverances of this court show the error of that view.

In a case of injury from an explosion, where the injured party could claim a right of position from nothing more than an implied, invitation, and *221*arguendo*upholding the . liability, this court quoted from an English case *(Heaven*v. *Pender,*11 Q. B. D., 503), the general rule of liability in such cases. *Harriman*v. *Pittsburgh, etc., Railway Co.,*45 Ohio St., 11.

The rule apparently puts the liability upon the score of negligence. It is not expressly adopted or approved by this court; and in the later case, *Bradford Co.*v. *Manufacturing Co.,*above cited, the element of negligence is definitely rejected, yet the liability remained. *Defiance Water Co.*v. *Olinger,*54 Ohio St., 532.

In a still later case storage of crude oil was held not to come within the rule, and proof of negligence was held necessary, but the distinction between that substance and the explosive under consideration was unmistakably pointed out by the judge writing the opinion, in his reference to dynamite and like substances, thus: *Langabaugh et al.*v. *Anderson,*68 Ohio St., 131.

We submit that the employment of Davis is of no significance, except as showing the reason for his presence where he was injured, and that his presence there was rightful. In other words, that the master’s duty to him may properly be considered as arising, not directly from the employment, but from the rightful presence of Davis upon the land on which the explosives were stored.

We believe the case undistinguishable in principle from the case of *Ellsworth*v. *Metheney,*51 L. R. A., 389; 104 Fed., 119.

In a suit for negligence where there are concurring ■ causes of injury, “In order to establish the right of action it is merely necessary to show that one of the co-operating causes was a culpable *222act or omission for which the master was responsible. This rule holds good whether the other cause were also defaults for which the master was responsible, or were due to some event or condition for which he was not required to answer.” 2 Labatt, Master & Servant, p. 2247; 1 Shearman & Redfield, Negligence, 5th Ed., Section 39; note also Sections 31-8.

Not only do these 'texts broadly' declare the immateriality of the intervening cause, even though it be an “act of God,” but qn exactly illustrative case can be examined. *Jackson*v. *Wisconsin Telephone Co.,*88 Wis., 243; 60 N. W., 430.

The cases more or less clearly illustrate the rule of the immateriality of an intervening cause in similar situations. *Town*v. *Michigan Central R. R. Co.,*84 Mich., 214; 47 N. W., 665; *Wright, Admr.,*v. *Southern Ry. Co.,*122 N. C., 959; 30 S. E., 348; *Pullman Palace Car Co.*v. *Laack,*143 Ill., 245; 18 L. R. A., 215.

To attack a liability it is not required that the particular injury or the particular form of the event should have been foreseen; all that is required is that it be a natural and probable result of the negligence. *Hill*v. *Winsor et al.,*118 Mass., 251.

This course of conduct, especially in view of Davis having nothing whatever to do with the storage or use of the explosives, and of his working-place as a laborer being only 100 feet away, is absolutely in the face of the settled law on the subject. *Mathers*v. *Rillston,*156 U. S., 391; 39 L. Ed., 464; note, 29 L. R. A., 724-6; 1 Labatt, *223Master & Servant, Section 16; 1 Shearman & Redfield, Negligence, Section 189.

Moreover, “the master owes the same duty in this respect to the servant that he owes to a stranger lawfully on the premises.” Wood’s Master and Servant, Section 334.

Upon any theory it was the duty of the defendant to warn Davis of the storage of' this large and additional quantity of dynamite, so recently and secretly put there, and of the attendant circumstances increasing his danger and risk. 1 Labatt, Master & Servant, Sections 208-9, 242; 1 Shearman & Redfield, Negligence, Section 203; *Ellsworth*v. Metheney, 51 L. R. A., 389; 104 Fed. Rep., 119; Beach, Contributory Negligence, Section 367.

A warning Is often held insufficient if it be not a “special warning in regard to the particular danger” and where no “explicit instruction as to the manner of avoiding it” was given. 1 Labatt, Sections 252-3; 4 Thompson, Comm. Negligence, Section 4107; *Bradburn*v. *Wabash R. R. Co. et al.*(Mich.), 96 N. W., 929; *Wainwright, Admr.,*v. *L. S. & M. S. Ry. Co.,*11 Ohio Circ. Dec., 530.

And the master must see that the warning “is actually given.” 1 Shearman & Redfield, Negligence, Section 203.

In effect this was a secret and concealed danger, or trap, and the master’s liability therefor is plain. 1 Labatt, Master & Servant, Section 59, and note 1, p. 152; *Wood*v. *Louisville & N. R.*R., 88 Fed. Rep., 46.

He had the right to rely upon the defendant to warn him, and, in the absence of warning, was under no duty to inspect or inquire, since he had *224no duty respecting the explosives. *Wellston Coal Co.*v. *Smith,*65 Ohio St., 70; *Davis*v. *Turner,*69 Ohio St., 101; 1 Shearman & Redfield, Negligence, Section 217; 4 Thompson, Comm. Negligence, Section 47921 Labatt, Master & Servant, Section 408.

The claim, if made, that Davis had equal means of knowledge with the company can not apply here because, first, it is not true; and, second, if it were true < that he had equal means, he was not under equal duty to use them. 1 Shearman & Redfield, Negligence, Section 217, pp. 379-80.

The principle applied in cases of confusion of goods, whereby the tort-feasor who has mingled another’s goods indistinguishably with his own must lose the whole, should control, and have the *effect for*which we contend. *Jennings*v. *Johnson et al.,*17 Ohio, 154.

*Mr. H. H.- McKeehan; Mr. Charles S. Turnbaugh*and *Mr. Davis ITawley, Jr.,*for defendant in error.

In the case at bar, we submit that it was incumbent upon the plaintiff to prove, first, negligence on the part of the coal company; second, that this negligence was the proximate cause of the injuries to plaintiff; third, that the' consequences of this negligence ought to have been foreseen; and, fourth, the plaintiff must put himself in such position as to legally entitle him to claim the law’s rewards for the negligence.

In the brief of opposing counsel this doctrine of proximate cause is almost entirely overlooked. No distinction is made between a concurring cause *225and the proximate cause. In their quotation from 1 Shearman & Redfield, Section 39, it will be noted that the negligence necessary to create a cause of action” where the act of God intervenes must nevertheless be a proximate cause of the damage. The law of proximate cause in Ohio is clearly laid down in the following cases. *Daniels et al.*v. *Ballentine et al.,*23 Ohio St., 532; *First National Bank*v. *Western Union Telegraph Co.,*30 Ohio St., 555; *Pittsburgh, etc., Railway Co.*v. *Staley,*41 Ohio St., 118.

The question is well discussed in the case of *Goodlander Mill Co.*v. *Standard Oil Company,*63 Fed. Rep., 400.

Counsel for plaintiff in error, in their brief, argue the proposition that lightning should have been foreseen, and anticipated, by the coal company, and apparently as residents of Guernsey county, advise the court, that thunder-storms are very frequent in that county in the month of June, and that a walnut-tree, such as that referred to in this record, is likely to be stricken by the lightning, on account of all of which the coal company should be held liable for what actually happened.

Just why it was that God struck the dynamite house with Flis lig‘ tiling, rather than the blacksmith shop, itself, no one other than Fie, Himself, knows. If the contention of counsel, for plaintiff in error be a correct and logical contention, however, then it would seeni to follow necessarily that it was the duty of the coal company to build its blacksmith shop so strong that if lightning should, perchance, strike it, no damage could be done to the men within it. In the case of *Pitts**226*burgh, etc., Railway Company*v. *Brigham,*29 Ohio St., 374, this court has held that this is not the law.

On the question of proximate >cause the following cases are instructive. *Memphis & Charleston Railroad Co.*v. *Reeves,*10 Wall., 176; *Morrison*v. *Davis & Co.,*20 Pa. St., 171; *Denny*v. *New York Central Railroad Co.,*13 Gray, 481; *Scott et al.*v. *Allegheny Railroad Co.,*172 Pa. St., 646; *South Side Pass. Railway Co.*v. *Trich,*117 Pa. St., 390.

In tort cases we know of no greater liability than that which is placed upon common carriers of freight and passengers and yet in the case of *American Express Co. v. Smith,*33 Ohio St., 511, this court held that a freshet of unusual violence, which prevented a delivery of the goods being transported, excused the common carrier.

Complaint also seems to be made that the dynamite was kept in a wooden structure. The record nowhere suggests what structure would have been capable of resisting the force of this explosion. If the structure must at all times be so absolutely strong that it will safely retain the dynamite upon explosion, then it must necessarily follow that whoever has dynamite in his possession for a useful purpose, is an absolute insurer that it will not do damage, and this notwithstanding the fact that the explosion may be caused by the act of God.

We do not claim that Davis was at fault. We only claim that in view of the knowledge which he had, he assumed whatever risks there were. As to the failure to warn, the record discloses that the only warning which the coal company *227could have given Davis to protect him against this accident was the warning that if lightning struck the dynamite house it would probably explode the dynamite, and that if the dynamite exploded, he would probably be injured if he should remain in the blacksmith shop. But clearly Davis knew this, and would have laughed at such warning being given to him.

Counsel for defendant in error also cited and commented upon the following authorities:

*Baltimore & Ohio Railroad Co.*v. *Lockwood,*72 Ohio St., 586; *Bradford Glycerine Co.*v. *St. Mary’s Woolen Mfg. Co.,*60 Ohio St., 560; 2 Thompson on Negligence, 1008; *Hazard Powder Co.*v. *Volger,*58 Fed., 152; *Huff*v. *Austin et al.,*46 Ohio St., 386; *Tiffin*v. *McCormack,*34 Ohio St., 638; *Gas Fuel Co.*v. *Andrews,*50 Ohio St., 695; *Defiance Water Co.*v. *Olinger,.*54 Ohio St., 532; *Cleveland, etc., Railroad Co.*v. *Marsh,*63 Ohio St., 236; *Langabaugh et al.*v. *Anderson,*68 Ohio St., 131; *Morris & Guild Co.*v. *Touvelle,*70 Ohio St., 439; *Rylands*v. *Fletcher,*L. R., H. L., 330; Pollock on Torts, 6th Ed., 472; *Nichols*v. *Marsland,*L. R., 10 Ex., 255; *Smith*v. *Fletcher,*L. R., 9 Ex., 64; *Box*v. *Jubb,*27 Weekly Rep., 415; *Hayes*v. *Smith,*62 Ohio St., 161; *Town*v. *Railroad Co.,*84 Mich., 214; *Wright, Admr.,*v. *Southern Railway Co.,*122 N. C., 959; *Jackson*v. *Wisconsin Telephone Co.,*88 Wis., 243; *Borchardt*v. *Wausau Boom Co.,*54 Wis., 107; Section 4238-21, Revised Statutes.

Crew, *J.*

While The Somers-Cambridge Company, in the circuit court, presented and relied upon the several exceptions noted by it during *228the trial of this case in the court of common pleas, the record informs us that the circuit court reversed the judgment of the court of common pleas for the reason only: “that the court of common pleas erred in not sustaining the motion of plaintiff in error, defendant below, to instruct the' jury at the conclusion of the evidence to return a verdict for defendant below, and erred in not instructing the jury as requested by defendant below, to return a verdict for defendant below,” and that having reversed said judgment upon this ground said .circuit court thereupon rendered final judgment in favor of The Somers-Cambridge Company, the plaintiff in error in that court. Upon this record, then, in view of the conclusion reached by this court, the only question of consequence presented here, material for our consideration, is: Was The Somers-Cambridge Company entitled to have judgment entered in its favor upon the undisputed facts, as they appear of record in this case? Whether it was so entitled, must be determined in the present case from a consideration of whether or not the injuries sustained by Davis in consequence of the explosion of the dynamite magazine or storehouse on the premises of The Somers-Cambridge Company, were sustained or received by him under such circumstances, that in lav/, he must be held to have assumed the risk or hazard which occasioned them. In considering this question it should be borne in mind that the only specifications of negligence or want of care alleged against the defendant coal company are, that the company collected and improperly stored' upon its premises large quantities of a highly dangerous *229explosive and neglected to inform or advise plaintiff — who was an employe of said company — of the amount or quantity so stored, and failed and neglected to warn and instruct plaintiff as to the dangers consequent upon the explosion of the same. It is not alleged or charged against the company that its negligence produced the explosion, nor is any cause for the explosion stated. It was shown on the trial: That on- and prior to June 30th, 1903, The Somers-Cambridge Company was engaged in sinking, on its own premises, a shaft to be used as the opening for a coal mine. On said premises and about one hundred and ninety feet from the mouth of said shaft there was located a magazine or storehouse in which the company kept a supply of dynamite to be used by it in prosecuting the work of putting down said shaft. About sixty-six feet south from the shaft, and about one hundred feet distant from this magazine or storehouse, was a blacksmith shop, in which,, on the day of the accident Davis, with other workmen, had taken shelter from the storm. At that time Davis had been in the employ of The Somers-Cambridge Company for about four months, and was familiar with the location and relative positions of the several buildings and structures on said premises, including said dynamite magazine. He knew the character of the latter structure, and of what it was built; the purposes for which it was used and the nature of its contents. Davis at the time of this accident was about fifty years of age and was not without experience in the handling and use of dynamite, he had handled and used it himself and had seen others handle and use it, *230and he was familiar with and knew its power and force upon being exploded, and while it is not shown that he had knowledge of the exact amount of dynamite in said magazine on the day and at the time it was exploded, confessedly he knew that it contained as much at least as two hundred pounds. And on the trial of this cause in the court of common pleas, at the instance and request of the counsel for Davis, the trial judge instructed the jury that: “No negligence is charged by the plaintiff as against the defendant concerning a quantity of dynamite equal to two hundred pounds, and caps to the number of two hundred, stored in' said dynamite house. So far as negligence in the matter of storage is concerned, such negligence is charged onfy as to the excess, if any, above these amounts.” Plainly, then, upon these facts, Davis must be held to have known and appreciated the danger, and to have assumed all risk of injury, that might reasonably be expected to result to one in his then position, voluntarily assumed, from the accidental explosion of two hundred pounds of dynamite in this magazine, only one hundred feet away. It is clear, we think, from the undisputed facts in this case that the defendant company was not negligent in failing to warn or instruct plaintiff as to the danger to be apprehended from an explosion of this magazine. Indeed, the only warning or instruction it could have' given him, that could be of any avail, was that if this dynamite magazine should be exploded, persons in the blacksmith shop at the time of such explosion would probably be injured thereby. But this he already knew, or must be held to have known, *231equally as well, whether said magazine contained only two hundred pounds of dynamite, or whether it contained more.

The position and claim of counsel for plaintiff in error would seem to be, that notwithstanding Davis knew the location of this magazine, its proximity to the blacksmith shop, and that it contained a quantity of dynamite which, if exploded, would probably result in injury to himself and those with him in the blacksmith shop, yet inasmuch as his employer had not informed him as to the amount of dynamite in said magazine in excess of two hundred pounds, that he, Davis, did not, and could not, know or appreciate the precise extent to which he might be injured in the event of an explosion, and therefore that the employer is liable for such injuries as he did actually sustain. Davis may not have realized, when he took shelter from the storm in this blacksmith shop, all the possible consequences of danger to himself from so doing, and probably he did not, but that he knew or should have known, he was in a place of danger, and was liable to be injured in the event of the explosion of the dynamite magazine, is obvious, and it does not matter that he did not know, and did not appreciate the precise extent or character of the injury he would sustain in the event of an explosion. To adopt such test would be to introduce into the doctrine of assumption df risk a wholly impracticable element and a rule of greatest uncertainty. The rule is, that one who exposes himself to an obvious and appreciated danger, even though he should not appreciate the full extent of the danger, assumes the risk of *232injury that may result to him therefrom. We are unable to find in the present case any ground for liability on the part of the Coal Company, or any such state of-facts as required the submission of this case to the jury. Upon the undisputed facts appearing on the record, we are of opinion that the injury sustained by plaintiff, if not due to pure accident for which no one was to blame, resulted from his own want of care in voluntarily placing himself in a position of danger, the risk of which he must be held to have assumed.

*Judgment affirmed.*

Shauck, C. J., Summers and Davis, JJ., concur. Price, J., not participating.