Exner v. Sherman Power Const. Co.

54 F.2d 510 (2nd Cir. 1931)

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Nature of the Case

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Facts

D kept dynamite in a small hut on the westerly bank of the Connecticut River located conveniently to its work. Evidence was introduced that twenty cases of dynamite, weighing fifty pounds each, were sent from the storehouse across the river to the hut the day before the explosion and that three such cases were still on hand in the hut before the additional twenty cases were brought to it. The morning of the explosion, an order had been given to send fourteen boxes across the river to the hut, but they had not been taken over prior to the explosion. There was evidence that after the explosion one of the witnesses picked up as much as two fifty-pound cases of unexploded dynamite at the scene of the explosion and found four or five more in a toolbox thirty to fifty feet from the hut. The general foreman of D testified that about one thousand pounds of dynamite were ordinarily required for daily use in blasting, but on some days when the company was not doing much drilling much less than one thousand pounds would be used. State law required that explosives be kept within 50 rods (275 yards) of an inhabited building. The hut was located close to an inhabited part of town where many inhabited dwellings were within the 50-rod radius. Three of D’s workers were killed in the explosion. Mrs. Exner (P), who was in bed in her house at the time of the explosion, was thrown out of bed and received injuries. Her house was so badly shattered as to require extensive repairs, and her business was damaged as well. She was 935 feet from the explosion (about 57 rods). D's president testified that there was no place where the dynamite hut could be located that would be accessible to the work that would not be within fifty rods from an inhabited dwelling and if it had been placed beyond that limit. He also testified that the State’s deputy fire marshal had consented to the use of the hut for storage. P got the verdict and D appealed.