
    Lida A. Hall, as Administratrix, etc., of Burt J. Hall, Deceased, Respondent, v. The Cayuga Lake Cement Company, Appellant.
    Third Department,
    March 7, 1906.
    Negligence—death by explosion of dynamite—failure to show negligence of defendant—erroneous charge.
    The plaintiff’s intestate, an employee of .the defendant, was last seen alive going to a small house maintained by the defendant for the purpose of thawing out dynamite to be used in blasting. It was shown that the custom of thawing dynamite was usual and necessary, and that after it was thawed out in order to use it a small hole was cut in one end of the stick of dynamite and an explosive cap inserted which was secured to the stick by winding wires around it. The only negligence sought to be proved was that, if dynamite were inclosed in a metal case and heated, with no means of allowing the resulting gases to escape, an explosion was likely. It yas not shown, however, that the defendant so inclosed the dynamite, but that it merely inserted an explosive cap in one end, which could not confine the gases.
    
      Held, that a charge which in effect authorized the jury to find out the cause of the explosion, which cause the plaintiff had not discovered and proved to the jury, Was error;
    That, as it was not shown that the defendant'had confined the dynamite when heating it so as to confine the gases, the evidence that it would explode if heated when so confined furnished no grounds on which the jury could impute negligence to the defendant.
    
      Appeal by.the defendant, The Cayuga Lake Cement Company^ from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 12th day of December, 1904, upon the verdict of a jury for $3,500, and also from an order entered in said Clerk’s office on the’3d day of June, 1905, denying the defendant’s motion for a new trial made upon the minutes. ' . .
    . The defendant, in the transaction of its business, is required to blast rock. This rock is blasted by the use of dynamite. This dynamite is stored in' a safe reservoir out of harm’s way. As it is used, however, it is required to. be brought up, and, in cold .Weather, thawed out. before. it can be exploded. A little shanty was built, upon the defendant’s premises, near to the quarry, about twelve-feet square. This shanty contained two rooms. One of them was* what was called the tool room, in which the tools Were kept. The ' other room was called the dynamite room. The dynamite, room was the smaller of the two. In. .this dynamite room was a stove, ■ and around the stove upon two sides, were shelves about eighteen inches from the floor, upon which the dynamite was placed for the purpose of thawing it out. After the dynamite was thawed out a little hole was dug out from one end of a stick of dynamite into which was put an exploder. The apparatus containing this exploder, and containing either the fuse by which it was lighted or the wife by which it was afteiwards attached to the electric battery, was called the cap. The exploder Was put into the end of' the stick of dynamite and in' some way the wires were then wound around the end of the stick of dynamite so- as to hold the exploder or cap in its place. Hpon the lSth day of January, 1903, the plaintiff’s intestate was last seen going toward this house Where this dynamite Was kept. A short time afterward a loud explosion occurred and .the plaintiff’s intestate was found-with his body very much, mutilated" about thirty or forty feet from this house. This action is brought by his administratrix for damages for his, death as caused by - the negligence of the defendant. The jury rendered a verdict of $3,500.. From the judgment entered upon that verdict and from an. order denying defendant’s motion for á new trial the defendant here appeals. Further facts appear in-the opinion.
    
      
      Halliday & Denton, for the appellant.
    
      J. J. McGuire, for the respondent.
   Smith, J.:

That all dynamite in cold weather is required to be thawed out before it can be used is admitted. . That the method which the defendant adopted for thawing out the dynamite, of placing it beside a hot stove, is the method commonly in use, is established by the evidence. The learned trial court in charging the jury upon the question of negligence said: The first proposition is, she must prove that the accident was caused by the. negligent conduct of the defendant corporation. That is the first question which you must examine in this case. It is asserted on the part of the.plaintiff that the accident occurred through the want of care by the person who was in charge of and was superintending the. preparation of the dynamite in these sticks; and the plaintiff asks you to" infer from the evidence in this case that in some manner hot known to the plaintiff, in the preparation or in the storing of these sticks of dynamite which had been thawed near the stove, and in the absence of the superintendent, that in some manner fire or heat or something was applied to some of these sticks oí dynamite and that the explosion took place and that this occurred from a want of care and caution, and negligence on the part of this man Callihan. The evidence shows that he was the only person that had the charge of this shanty and of 'the preparation of loading these' sticks of dynamite or placing the caps in them. The plaintiff’s claim is that some of these sticks were improperly capped and left upon the shelf near the stove, and the' theory which has been suggested on the part of the plaintiff is that in some manner after, the cap had been inserted into the dynamite and it had been secured there that the confining of certain gases caused the explosion. On'e witness said that if certain gases had been permitted to escape from the sticks it would have rendered the whole composition harmless under ordinary circumstances, but in some way by confining the gas in the tube closed in the manner in which they were that the explosion took place.” At the close of the charge the.defendant’s counsel requested the court to charge that the plaintiff cannot recover in this case if the explosion was caused in any way by gases accumulating in these sticks of dynamite. The Court: Ho; the evidence, of one witness is that that would cause the explosion. Defendant’s counsel: There is no proof in this case that that did cause it. The Court: There is what he said about it. Defendant’s counsel excepted to the refusal to charge as requested. The Court: That-1 leave as question of fact to the jury to determine how the explosion took place. Defendant’s counsel excepted to-the charge as made and to the refusal to charge as requested.”

From this charge it will be seen that the jury were authorized to find out what was the cause of the explosion which cause the plaintiff had been unable to discover and prove before the jury. Aside from this, however, we are unable to "find any evidence whatever which would authorize the jury to find that this explosion was caused by the confinement of gases which would come' from the dynamite. The only evidence to the effect that the confinement of gases in dynamite will cause an- explosion is found' in the evidence of the witness Maloney. Upon that subject he swears: “ To explode it by heating, it is confined in a metallic receptacle where the gases cannot escape from it.” This dynamite was not • confined in any metallic receptacle. This capping, so called, is fully described in-the evidence by the witness Calkins, and all there is of >it is the insertion of an exploder into a hole about as largexas a lead pencil in the end of a stick of dynamite ánd fastening it there by wires wound around the end of the stick. It is apparent that the gases which would escape by reason of the heating of the dynamite are no more confined than they would be without the capping. There being no other evidence in ' the case as to the possibility of the explosion being caused by the confinement of gases it was clearly * error for the learned court to allow the jury to say that the explosion might have been so caused and to charge the defendant with negligence therefor. It is not necessary for us to decide, therefore, whether there was sufficient evidence in any aspect of the case to authorize a recovery, or whether the rulings upon questions of expert testimony were erroneous. These questions may not be presented in another trial.

All concurred.

Judgment and order reversed and.new trial granted, with costs to appellant to abide event.  