Hallenbeck v. Lone Star Cement Corp.

273 A.D. 327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1948
• Status: Published

Opinions

Bussell, J.

This is an appeal by the defendant from a judgment of the Supreme Court entered against it in favor of the plaintiff Charles E. Hallenbeck as guardian ad litem of Charles E. R. Hallenbeck, an infant, entered in the office of the Columbia County Clerk on June 30, 1947, upon a verdict of a jury and from an order denying its motion to set aside the verdict and for a new trial.

This case was tried on the theory of negligence. The plaintiff, a fifteen-year-old boy, together with another boy of the age of thirteen years, left their homes in the city of Hudson at about one o’clock on Sunday afternoon, October 21, 1945, and proceeded by means of a public highway and then across lands of the defendant which were leased to one William Hiscox, to the land of the defendant in which was being operated a quarry for the purpose of its cement business. While walking down the Newman road and before entering the land of the defendant, one of the boys, Richard Inman, the companion of the plaintiff, testified that they made up their minds to steal blasting caps which were located in a building in defendant’s quarry, for the purpose of Halloween. Arriving at the new quarry on defendant’s property they walked around the rim of said quarry, then along the southerly rim to the floor of the old south quarry and finally climbed down onto the floor of the new quarry by means of a rope which was approximately thirty-eight feet long. This rope was for the purpose of assisting drillers to go up and down from one quarry to another as a short cut. When they reached the floor of the new quarry Inman pointed out the work shack. The two boys then proceeded to the building. This building was covered with tar paper. The plaintiff while trying to see through a crack in the door lifted up the edge of the tar paper and the key fell out. The plaintiff then unlocked the door with the key. The boys entered the building and found a big spool of green rope which was prima cord. Prima cord has the appearance of ordinary fuse, but has far greater dangerous potentialities. It is a highly explosive detonating fuse which explodes with tremendous force. It contains PETN, one of the highest explosives known to man. They also found blasting caps in red tin boxes with yellow lettering which contained warnings as to dangerous contents. The plaintiff then took two boxes of blasting caps, each box containing 100 caps, while Inman took one and one-half boxes of blasting caps. They also stole a pair of crimpers and between twenty-five to thirty feet of prima cord. The door of the work shack was then locked, the key replaced behind the tar paper and the boys then climbed up the rope and started for the old quarry.

At the old quarry they inserted three pieces of prima cord, seven to eight inches long in blasting caps. They lighted the same, but it smoldered and went out. They then threw the prima cord into a hole and returned to the new quarry to get more fuse that would set off these caps. On returning to the new quarry where the.work shack was, they found a cardboard box in the corner covered with an old jacket. Inside this box they found three or four rolls of white fuses with caps attached. The plaintiff stole three rolls of this fuse and Inman two rolls. The fuses with caps attached were three feet or more in length. They then closed the locked door, climbed up the rope and at the top of the new quarry lighted one of the fuses with a cap attached. They exploded at least two more of these caps before reaching a cement platform at the southern end of an artificial pond in the Hudson city cemetery, which was off the defendant’s property and approximately a mile from the shanty in which the explosives were stored. At this platform they stopped for the purpose of lighting caps and throwing them into the water. Inman started for a store to get some matches. While Inman was on his way, the plaintiff shortened the fuse from forty-two inches to eight or nine inches so it would explode sooner. He then slit the end of the fuse with the crimpers, one-half inch or less so some of the powder fell out. At this time he had two full boxes of blasting caps in his pocket. He then knelt on his right knee, and laid the fuse across his left leg. He then lighted a match, picked the fuse up and held it about one to one and one-half or two inches from the opened end of the fuse. As he held the lighted match to the end of the fuse the explosion occurred. He went to the edge of the bank and lay down and was then taken to the Hudson city hospital in an ambulance. At the time the explosion occurred the plaintiff claimed he had in the left pocket of his overalls a cap with a piece of prima cord attached. Prima cord explodes by force of concussion and not by lighting.

Considering whether or not the defendant was negligent in view of the high degree of care exacted of one who keeps in his possession explosive substance of a dangerous nature, the evidence reveals enlightening facts. The 'caps, fuses and prima cord which were taken by the boys were enclosed in a wooden shack with the door locked and the key hanging near the door under tar paper which covered the shack. The construction of the building and the manner of the storage of‘explosives violated several provisions of the New York State Labor Law, and also sections of the Federal statute known as the Federal Explosives Act. (U. S. Code, tit. 50, ch. 8, as amd.)

It appears that the main supply of dynamite, fuses and caps was kept in individual and widely separate magazines in the woods and that less than a month before the injury occurred the work shanty had been inspected by a State inspector who made no comment as to the defendant’s use of the same. This shanty in question was used by the company to house the caps and fuses left over from the day’s operation.

The plaintiff produced several children, ranging from thirteen to sixteen years of age, as witnesses who testified that there were no fences around the property and that they had been on the property of the defendant many times without permission for the purpose of hunting, fishing, playing games, Boy Scout meetings, entering the caves and trapping. Inman testified that in August before the accident he was with some boys who entered the shack and stole some caps and fuses. However, all the lands owned by the defendant were leased to William Hiscox, with exception of the lands used for quarries, railroads, buildings, or other equipment. Therefore, the defendant possessed control only over the lands within the exception. Some of these witnesses talked to the workmen while at work and were never told to get off the property.

In contradiction to this evidence the superintendent of the plant testified that he had never had any report of thefts of caps prior to October 21,1945, and also that orders were issued to him to remove any trespassers or other people from the property; that there was only one entrance to the quarry and that even people who had business on the place were required to get passes at the office to enter.

One of the drillers testified that he had never heard of any caps being stolen from the shanty prior to October 21, 1945. The foreman of the plant testified some boys did come up to the quarry in vacation time and he ordered them away. He also explained to them the danger of stone rolling down and also the danger of blasting caps. The defendant’s evidence further shows there was no guard or employee of the company at the quarry on Sunday.

Because of the nature of the building in which the explosives were stored in violation of the laws, and because of the disputed facts as to the presence of boys in and around the quarry before the day of the accident, a question of fact properly arose as to the negligence of the company.

The defendant, having in possession dangerous explosives, was bound to exercise such reasonable care as was commensurate with the apparent danger, especially where the presence of children of tender years was involved. (Travell v. Bannerman, 174 N. Y. 47; 35 C. J. S,. Explosives, § 5, pp. 227-228.)

We now must pass to the doctrines of foreseeable consequences and proximate cause.

It appears that the plaintiff was in second year high school, had studied social studies, English 9, Spanish 1, elementary algebra and general science, and had passed all of those studies. He was also a member of the Boy Scouts and admitted that he knew it was wrong to go on other people’s property, break into a building and take things. Equipped with this knowledge he first tried to light the prima cord about which he had no knowledge. When it smoldered and went out he threw it away and then went back as stated above, obtained caps and fuses that he did know would explode. He also knew he could be hurt by an explosion and he knew that by shortening a fuse he could create a quicker explosion. He exploded three of those on the way to the place of injury. At this time there is no evidence that he shortened the length of the fuse, and he consequently was not injured. The foreman testified that it takes two minutes and forty-eight seconds for a fuse forty-two inches to explode and that the company uses another fuse, a safety fuse, as a warning to workmen, that requires two minutes to explode, which gives the workmen forty-eight seconds to get away. Standing at the edge of the pond the plaintiff shortened the fuse to eight inches, crimped the fuse with a pair of crimpers so that some powder ran out and lighted the end, which caused a sudden explosion and therefore a new cause in the chain of events was created by the plaintiff himself. It cannot reasonably be said that the defendant could have reasonably foreseen or expected these different steps taken by the plaintiff which resulted in the sudden explosion. (Perry v. Rochester Lime Co., 219 N. Y. 60-63.) “ The proximate cause of an event must be held to be that which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred. ’’ (Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, 147.)

Supporting this doctrine of an intervening cause or causes relative to the issue involved here, we rely upon Perry v. Rochester Lime Co. (supra). The defendant in that case stored blasting caps in a chest in a public place on the bank of the Erie Canal in the city of Eochester. This storage was in violation of an ordinance of the city of Eochester. At this place boys were accustomed to play and fish on this land. Two boys, one thirteen years old, and the other twelve years of age, stole nitroglycerin caps which were packed in tin boxes and said tin boxes were packed in a wooden box. The wooden boxes were kept in a chest which was left opened. The boys hid the caps in the back yard of a friend and the next day the two boys who had stolen the caps, took the caps away to explode and were accompanied by a small boy, eight years old, who had not stolen any. The boy eight years old was killed by the explosion. No recovery was allowed. The court held (p. 64) “ a series of new and unexpected causes intervened and had to intervene before these explosives could bring death to Perry ” (the eight-year-old boy).

In the case of Babcock v. Fitzpatrick (221 App. Div. 638, affd. 248 N. Y. 608) the defendant had been doing road construction work at Whitehall in Washington County. It left a box of blasting caps under the porch of a house on the property of one Cordon. William Cordon, eleven years old and a nephew of the owner of the land where the caps had been improperly stored, stole some of these caps. He met another boy twelve years old. The two boys then went to a secluded place where in lighting a cap the plaintiff received injuries. The court held that the act of the Cordon boy was an intervening cause and no recovery was allowed.

The courts in Massachusetts have evidently held in such cases that the act of the one stealing or taking and then igniting an explosive is an intervening cause. In the case of Horan v. Inhabitants of Watertown (217 Mass. 185, 186) the sewer department of the defendant left a tool chest in a highway, unlocked and unwatched. The chest contained dynamite. There was no watchman guarding the dynamite or chest. Some boys took the dynamite and threw, it on a bonfire. The plaintiff, who was a boy seven years old, was standing near the fire and was badly burned from the explosion. The court held that “ the chain of causation is broken and the original negligence cannot be said to have been the proximate cause of the final injury.”

The case of Bottorff v. South Construction Co. (184 Ind. 221) upholds the same principle of an intervening cause.

The plaintiff relies upon the doctrine enunciated in Bridges v. Dahl (108 F. 2d 228) (a Michigan case) and also Luhman v. Hoover (100 F. 2d 127) to the effect that one who stores explosives in a place where they are likely to fall into the hands of children, thus setting in motion a chain of events from which an ordinarily prudent person might reasonably anticipate injury, is primarily liable and the causation is not broken by the one taking the explosive from the premises and later exploding the same to his injury. In these cases the plaintiff has overlooked the law as stated by the courts that the plaintiffs could not recover if they knew of the moral wrong involved in the act and if they appreciated the risk and danger involved in the act. In other words, the cases relied upon by the plaintiff hold that a child could recover only where he did not appreciate either the wrongful act or the risk and danger involved.

The instant case is stronger for the defendant than either the Perry v. Rochester Lime Company case (supra), or the Horan v. Inhabitants of Watertown case (supra). In the instant case the explosives were locked up and on private property. In the other cases the explosive was on public property in chests unlocked, which were accessible to children and adults. The instant case also differs greatly from the cases relied upon by the plaintiff because in the instant case the plaintiff testified himself that he knew of the wrongful act and of the risk and danger involved in exploding the caps and fuses.

The judgment and order appealed from should be reversed on the law and the facts and the complaint dismissed.