Fanning v. J. G. White & Co.

62 S.E. 734, 148 N.C. 541, 1908 N.C. LEXIS 240

• Court: Supreme Court of North Carolina
• Decided: October 28, 1908
• Status: Published

Opinions

CLARK, C. J., dissenting, arguendo; HOKE, J., concurs in dissenting opinion. (542) Plaintiff sues the defendant railroad company and White Co., contractors, for damages by reason of injuries alleged to have been sustained by the negligence of defendants. The testimony showed that defendants White Co. were, on and before 14 May, 1907, engaged in constructing a railroad for defendant Norfolk and Southern Railroad Company from Newbern to Washington, N.C.; that while so engaged defendants White Co. stored in an old shanty a large quantity of dynamite, in boxes, upon which were painted or printed the words "Handle With Care — Dynamite." There was no sign or warning on the shanty. The shanty was rotten, the window was torn out and the door open on the side next to the river. The back end was nailed up. It was about 20 feet from the Neuse River, about 180 feet from the county road and 50 feet from the railroad track, on the right of way. There was a little shanty about 70 yards away. The county road led to the bridge over the river to the city of New Bern, about one mile distant. The village of Bridgeton had lately been incorporated, and included the location of the shanty. It is about one-half to three-fourths of a mile from the foot of the county bridge to the railroad bridge. The principal buildings in Bridgeton are located "right at the foot of the county bridge." The growth around the shanty was gallberry bushes. The shanty was at an isolated place when the tide was high, and when low there was a good place to walk on the banks of the river. Plaintiff had resided about 200 yards away from the shanty for about two weeks; did not know that dynamite was in it. On Sunday morning, 14 May, 1907, plaintiff, in company with McGhee, went to the river for the purpose of bathing. On their return they passed near the shanty, back of it, near the river, McGhee had a pistol and had fired four or five times at trees. He said that he had one more ball, and asked plaintiff to show him something to shoot at. While plaintiff was looking around, McGhee shot at the shanty. The ball passed through a hole and struck (543) the dynamite, causing an explosion, blowing up the shanty, trees, etc., and injuring plaintiff. The shanty, 70 yards away, was injured and several houses in Bridgeton shaken and window lights broken. The same effect was felt in New Bern. The plaintiff did not direct or advise his companion to shoot at the shanty.

At the conclusion of the evidence introduced by the plaintiff, defendants moved for judgment of nonsuit. Motion allowed. Plaintiff excepted and appealed. after stating the case: The injuries sustained by plaintiff resulted from the shooting by McGhee into the shanty, as set out in the record in McGhee v. R. R., 147 N.C. 142, decided at the last term of this Court. In that case the defendant demurred to the complaint, in which it was charged that the shanty containing the dynamite was a public nuisance. It was then strongly insisted and, in the dissenting opinion, maintained that the demurrer admitted the allegation. His Honor, on the trial of this case, heard the plaintiff's testimony, from which it appears that the shanty was 60 yards from the public highway and that the window was "torn out," the door stood open and the boxes containing the dynamite were so marked as to give warning to any person who would take the trouble to look into the door or the open place in which the window had been. The majority of the Court thought, for the reasons given in the opinion, that, conceding the truth of the allegation in the complaint, the dynamite stored in the shanty was a public nuisance, the plaintiff could not recover. Without repeating what we have so lately said, we are of the opinion that the testimony here falls far short of showing that defendants were maintaining any nuisance. To store dynamite being used for a legitimate purpose necessary for the construction of a railroad on its own right of way, in a shanty (544) with the door open and the window torn out, affording any person ample opportunity to see the danger, with the warning written or printed on the boxes, cannot violate any duty owing to a person going upon the premises without a license, either express or implied. The basis of the decision in McGhee's case being that defendant owed no duty to him in regard to storing the dynamite, and that it could not by any reasonable prevision have foreseen that anyone would shoot into a shanty, we are unable to perceive any ground upon which the plaintiff's case can be distinguished. If, as we then held, the explosion of the dynamite was not the result of any actionable negligence on the part of the defendants, but of the wrongful act of an independent, intelligent agent, we do not see how any liability can attach for the injuries sustained by plaintiff. If I have an article or a structure on my premises, entirely harmless unless interfered with by a trespasser, and I have no reasonable ground to anticipate that a trespasser will come upon my premises and interfere with the structure, and two trespassers, in company, come together, and one of them, by interference, causes injury to the other, the law will attribute the injury to the interference of the intelligent, intervening agent and not to the condition created by me. This principle is illustrated by the decision in Harton v. Tel. Co., 146 N.C. 429. It is there said that, assuming the pole to have fallen by defendant's negligence, the act of Carpenter in replacing it in a dangerous position was the causu sausans of the injury sustained by plaintiff's intestate. In what respect, upon principle, does this case differ from that? Conceding that defendant was negligent in storing the dynamite, which we do not hold, it would never have injured the plaintiff but for the interference of McGhee, his cotrespasser. As we held in Harton v. Tel. Co., supra, that the pole, lying across the road by defendant's negligence, could never have fallen upon the plaintiff's intestate unless Carpenter had (545) interfered with it, so here the dynamite was absolutely harmless but for McGhee's act of shooting into the shanty. As it now appears by walking a few steps he would have seen that it contained boxes marked "Dynamite." Without pursuing the subject further, we entertain no doubt that his Honor, both upon principle and authority, correctly directed judgment of nonsuit. There is

No error.