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6 Am. Neg. Rep. 632; Stanley v. Helm, At the time of the explosion the 204 Mo. App. 159, 223 S. W. 125. plaintiff was 1,100 feet from the Even though there was an emer

place of the explosion. She alleged gency, still the judgment should not

that the shock of the explosion and be reversed, because there was evidence of plaintiff's negligence which

the poisonous gases affected her should be left to the jury.

nervous system, and gave her perTozier v. Haverhill & A. Street R.

manent injuries, for which the jury Co. 187 Mass. 179, 72 N. E. 953; Ameri

allowed her $1,500. can Car & Foundry Co. v. Inzer,

The plaintiff in her petition alInd. App. - , 86 N. E. 444; Alabama leged negligence of defendant as G. S. R. Co. v. Hunt, 17 Ala. App. 566, follows: "The agents of said de86 So. 97; Atkins v. Lackawanna fendant company as above named, Transp. Co. 182 Ill. 237, 54 N. E. 1004,

while in the employ and service of 6 Am. Neg. Rep. 472; Edgerton v.

said defendant company, and in O'Neil, 4 Kan. App. 73, 46 Pac. 206; Kansas City-Leavenworth R. Co. v.

compliance with said order of the Langley, 70 Kan. 453, 78 Pac. 858; company to transport said nitroMcCallion v. Missouri P. R. Co. 74 glycerin over said highway, so Kan. 790, 9 L.R.A.(N.S.) 866, 88 Pac. carelessly, negligently, and unlaw50.

fully conducted themselves in If an emergency is brought on by transporting said nitroglycerin, by the negligence of the man who seeks driving the cars in which said nito excuse his act by reason of the

troglycerin was being transportemergency, it will not excuse him. Tuttle v. Connecticut Valley Street

ed at such a high rate of speed R. Co. 239 Mass. 553, 132 N. E. 360;

as to cause one of them to catch Dobbins v. Seaboard Air Line R. Co. fire, and negligently, carelessly, 108 S. C. 254, 93 S. E. 932; Condiff

and unlawfully drove said car v. Kansas City, Ft. S. & G. R. Co. 45 while it was so afire along the pubKan. 256, 25 Pac. 562; Atchison, T. & lic highway near to and past the S. F. R. Co. v. Henry, 57 Kan. 164, 45 residence of this plaintiff, about a Pac. 576.

quarter of a mile south of the Floyd Harvey, J., delivered the opinion schoolhouse in Chautauqua county,

, of the court:

Kansas, and about 2 miles east of This is an action for damages for Peru, Kansas, and driving it a short personal injuries, alleged to have distance north of the plaintiff's been sustained by the negligence of house, partially up a steep hill, and defendant. The jury made special carelessly, negligently, and unlawfindings and returned a general ver- fully abandoned it on said hill withdict for plaintiff, upon which judg- out securing it, and permitting it to ment was rendered. The defendant run backwards near the plaintiff's appeals, claiming that what the jury residence and into a ditch, which found to be negligence of the defend- caused the nitroglycerin in said car ant is not negligence at all, and not to explode with great force." the proximate cause of the injury. The defendant was transporting two by the jury are the following:

Among the special findings made automobile loads of nitroglycerin

5. Was the car in question on from its factory ir: Oklahoma into

fire at the time that the plaintiff first Kansas, over the public highway. It seems that one of the automobiles

A. Yes. got on fire, and after they had passed the residence of plaintiff

7. If you find for the plaintiff,

then state what acts of negligence about 800 feet distant there was quite a steep hill. The automobile

the defendant, its servants and emon fire could not make the hill; the ployees, were guilty of.

A. Abandoning car on steep hill driver abandoned it, and the automobile ran back down the hill and

without securing it, permitting car

to back downhill and upset. upset, and later, perhaps half an hour, the nitroglycerin exploded.

. It will be noted that the only neg

saw it?

on fire.

(113 Kan. 136, 213 Pac. 663.) ligence of defendant found by the proximate cause of the loss, and jury was in abandoning the car on also the cause of his acts.” a steep hill, without securing it, In Allen v. Schultz, 107 Wash. permitting it to back down the hill, 393, 6 A.L.R. 676, 181 Pac. 916, it and upset. This amounts to a find- was held: “One confronted with a ing in favor of the defendant upon sudden peril not arising from his all the other acts of negligence al- fault may, to avoid injury to himself, leged in the petition.

act in the way the emergency seems Appellant contends that for a per- to require without being guilty of son to abandon an automobile load negligence, though he injures anof nitroglycerin when the automo- other who in no way contributed to bile is on fire and stuck on a steep the condition creating the peril.” hill is not actionable negligence; In Moody V. Gulf Ref. Co. 142 that the emergency

Tenn. 280, 8 A.L.R. 1243, 218 S. Negligenceabandoning load is such that one is W.817, it was held: “An employee of nitroglycerin justified in getting defendant, in unloading a tank

away as soon as car filled with gasolene, is not neglipossible. We are inclined to adopt gent in that, while emptying the that view. In 29 Cyc. 434, the rule spout at the bottom of the tank inis thus stated: “Persons suddenly to a tub, he, on warning of blasting placed in a position of peril and of rock near by, ran around the car impending danger do things which to escape danger, and in his absence ordinarily would be acts of negli- the tub overflowed, and the overflow gence, but acts done in such extreme was ignited, and the fire burned circumstances are not to be judged plaintiff's building." And further by ordinary rules, and if an act has held: “One who in sudden emerto be performed in a brief period, gency acts according to his best with no time in which to determine judgment, or who, because of want the best course, negligence cannot of time in which to form a judgbe predicated of it."

ment, omits to act in the most judiIn Donahue v. Kelly, 181 Pa. 93, cious manner, is not chargeable with 59 Am. St. Rep. 632, 37 Atl. 186, negligence.2 Am. Neg. Rep. 229, an employee In Louisville & N. R. Co. v. in a restaurant picked up a gaso- Wright, 193 Ky. 59, 235 S. W. 1, it lene lamp which had become improp- was held: “Failure to exercise the erly ignited, to carry it outside. best judgment in an emergency is While proceeding to the door he was not evidence of negligence, though severely burned, and threw the the error be fraught with lamenlamp, causing it to explode. The table results.” court held that the employer was

In Sieb v. Central Pennsylvania not liable as for culpable negligence

Traction Co. 47 Pa. Super. Ct. 228,

it was said: “When one who is to a third person injured by such

without fault is unexpectedly placed explosion. In Owen v. Cook, 9 N. D. 134, 47

in a position of peril, he is to be

dealt with in the light of his surL.R.A. 646, 81 N. W. 285, it was

roundings at that time, and he is held : A person whose property

not necessarily negligent even is threatened with imminent de

though his judgment has been struction by fire may take such steps

wrongly exercised." for its protection as are reasonable

In Filippone v. Reisenburger, 135 and proper; if his acts aid or con

App. Div. 707, 119 N. Y. Supp. 632, tribute to the destruction of anoth

it was said: "Plaintiff was working er's property, he will not be liable in a building excavation, and was as for its negligent destruction.

standing on a runway leading into The fire from which, without negli- the excavation,

the excavation, when defendant gence, he seeks to protect himself, stepped upon a barrel standing near will be considered as the direct and the runway, and, as claimed by

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plaintiff, the barrel turned over and It seems clear that the time was defendant caught plaintiff's feet to not sufficient, nor the circumstances prevent himself from falling into such as, to permit of meditation or the excavation, and caused plain- deliberation. In 20 R. C. L. 29, it tiff to fall and injure himself; but was said: "The rule judicially defendant claimed that the barrel stated is that one who in a sudden gave in, and he took plaintiff's hand, emergency acts according to his best held out to help him onto the run- judgment, or who, because of want way, when they both fell. The bar,

of time in which to formulate a rel was in reasonably good condi- judgment, omits to act in the most tion, was not placed there by de- judicious manner, is not chargeable fendant, and was not so placed that with negligence." it would necessarily turn when de. In Ransom v. Union Depot Co. fendant stepped on it. Held that, 142 Mo. App. 361, 126 S. W. 785, in either event, the injury was ac- an employee of an express company, cidental, and, under the rule that an while unloading an express car, was act done under the influence of warned that a train was coming into pressing danger is presumed to the depot close to the track where have been done involuntarily, de- his truck stood, and that he must fendant was not liable.”

move his truck immediately to avoid In Floyd v. Philadelphia & R. R. collision with the train, and he got Co. 162 Pa. 29, 29 Atl. 396, it was it across the track of the incoming held that, though a flagman may train and upon the platform, but in have signaled persons in a carriage so doing came in contact with a deto advance over the crossing, yet, on pot truck, and caused the depot discovering a train almost on the truck to roll down so close to the crossing and the carriage coming track that it was struck by the inin disregard of it, he is not negli- coming train and thrown against gent in stopping the horse by any plaintiff, who was passing upon the means in his power, even if in doing platform; the court held that the so he frightened the horse-a thing expressman was not guilty of negwhich, with cooler judgment, he ligence. In the opinion it was said: might have avoided.

“It is suggested in the evidence that Appellee contends that this rule the expressman hesitated for a moshould not be applied, because the ment, and also that he did not foldriver had time for deliberation.

low the most expeditious course for This is based upon plaintiff's testi- removing the truck to a place of mony that the car “hung on the hiil safety. The suggestions amount to and ran back."

nothing more than an expression The plaintiff testified:

of opinion, but, if well founded, they Q. You saw them pass your afford no ground for an inference of place?

negligence. The expressman was A. Yes; just glimpsed at them suddenly confronted by a great perfrom work.

il, which gave him no time to think. Q. Was either of them afire at The law imposes no rules of conduct that time?

upon one who is suddenly confronted A. Yes, sir; the one was.

by impending danger and is comQ. What happened after the cars pelled to act, not by the dictates of passed your place?

care and reason, but by the instinct A. They went by the hill, one car

of self-preservation.” clear up, and the other hung on the

Appellee cites cases holding that, hill and ran back.

if the emergency is brought on by

the negligence of the man who seeks Just how long the car "hung on to excuse his act by reason of the the hill" is not shown.

The ex

emergency, it will not excuse him. pression would indicate a brief time. These cases are not applicable here, (113 Kan. 136, 213 Pac. 663.) for the reason that the jury found The plaintiff testified: no other negligence on the part of Q. Did you see it run back? defendant. Had the jury found A. Yes; I seen it run back and that the automobile was on fire turn bottom up in the ditch. through the negligence of defendant, Q. Then what happened? the doctrine of these cases would A. I told the old man that was have been applicable; but the jury staying there that there was a car did not so find, though plaintiff al- in the ditch on fire, and there might leged it. By the findings of the jury be somebody under it, and he went the defendant was not guilty of any up there and pulled a sweater out negligence except that of abandon- and seen what it was, and ing the car, and permitting it to Q. Did you go with him? run back down the hill and upset. A. No, sir.

Courts take judicial notice of the Q. What happened to you? highly explosive qualities of nitro- A. Well, I went on about my work glycerin, and that it explodes more until the car exploded, and then I readily when heated. Take the case couldn't hardly remember anything of the driver of this car, loaded with that night. nitroglycerin, on fire through no Q. The car didn't explode as fault of his, and stuck on a steep soon as it ran back? hill. The danger of a terrific explo- A. Oh, no; I went and milked two sion was imminent. There is no cows before it exploded. showing that he could have put out Q. Did it finally explode? the fire, or prevented the car from A. Yes, sir. running back down the hill, or done

So it seems clear that the act any good in any way by staying. Is

found by the jury to constitute neghis act in abandoning the car under these circumstances negligence

ligence of the defendant was not

the cause of the explosion and rewhich will make him or his employer sulting injury to plaintiff. It is well liable for damages? The answer

settled that, where the act found as must be in the negative.

negligence did not Appellant further contends that

cause the injury - not proximate the act of the driver in abandoning complained of, there the car and permitting it to run can be no recovery. St. Louis & S. back down the hill and upset was F. R. Co. v. Justice, 80 Kan. 10, 101 not the proximate cause of the ex- Pac. 469. plosion and injury. Strange as it The judgment of the court below may seem, the nitroglycerin did not is reversed, with directions to enexplode when the car backed down ter judgment for the defendant. the hill and upset.

Petition for rehearing denied.

cause.

ANNOTATION.

Liability for damages by explosives transported along highway. There seems to be very little in the highway as nuisance, see the annota. books directly on the specific question tion in 11 A.L.R. 719. under annotation.

For violation of statute or ordinance The degree of care required of per- in relation to explosives, as ground of sons having the possession and control action in favor of one injured in person of dangerous explosives is of the high- or property by explosion, see the annoest. The utmost caution must be exer- tation in 12 A.L.R. 1309. cised, to the end that harm may not It will be seen that in the reported come to others in contact with them. case (BARNHARDT V. AMERICAN GLYCER11 R. C. L. 662.

INE Co. ante, 721) it is held that one For the storing of explosives in driving on a highway an automobile loaded with nitroglycerin, who dis- evidence that the cars were not propcovers that the automobile is on fire, erly equipped. “And whatever degree the fire not having been caused by any of care the defendant had exercised lack of care on his part, is not guilty theretofore and nothing less than of actionable negligence in abandon- the very highest would be sufficient ing the automobile when it is stuck on

), the defendant's manager cona steep hill. The automobile ran back cluded that a still higher degree of down the hill, which was near the care could be exercised by transferplaintiff's residence, and upset "and ring the explosives from the remainlater, perhaps half an hour," the ing ... car to one perfectly equipped nitroglycerin exploded. At the time for such purpose.” of the explosion the plaintiff was (It may be noted that the driver of 1,100 feet away; she alleged that she the unexploded car seems to have been was injured by the shock of the ex- convicted of a misdemeanor, but on plosion and the poisonous gases. The appeal his conviction was reversed. plaintiff was aware of the presence State v. Satterlee (1921) 110 Kan. 84, of the car for some time before the 202 Pac. 636. It was held that that explosion. There is nothing in the part of the Kansas statute "which procase as to the omission of the driver to hibits a person from carelessly or give warning to persons in the vicinity negligently handling or exposing nithat there was a burning car contain- troglycerin violates § 10 of the Bill of ing nitroglycerin in the road, unless Rights of the Constitution of the state the word “abandoned” gives such a of Kansas, for the reason that the statsuggestion.

ute does not name the acts which are In Ladlie v. American Glycerin Co. prohibited by law. A complaint drawn (1924) Kan. –, 223 Pac. 272, the under that portion of the statute does plaintiff, who was injured in his mill not charge an offense against the laws some 700 feet distant by the explosion

of the state of Kansas.") of a new commercial automobile carry

In Furth v. Foster (1868) 7 Robt. ing nitroglycerin, on the highway, re- (N. Y.) 484, the defendant ordered his covered a judgment against its owner,

cartman to take a can of powder from which was affirmed on appeal. The the premises of the defendant's coal court construed the findings as hold- yard, and to throw it into the river; ing that the defendant was negligent

the cartman drove off with a companin failing to equip the car properly for ion, and the can, being rotten, broke the transportation of nitroglycerin,

from the jolting of the car, and a porand that its driver drove it over a tion of the powder was scattered along rough piece of road into a rut or de. the route; when the cartman dispression at 10 miles an hour, causing covered that the can was broken, he a jar. It was held that the plaintiff and his companion, having been told was properly permitted to show that that the powder was damaged and was the driver of a companion car notified of no use, threw it—it being in cakes his employer, who promptly dispatched and lumps-into the street; there was another car properly equipped, to a small fire in the street, and some which was transferred the load of boys there threw a portion of the powsuch companion car. The two original der into the fire, resulting in an excars were alike, new commercial cars, plosion which injured the plaintiff, as used but little, and consequently stiff well as other boys. The jury found in their springs and bearings. The a verdict for the plaintiff. On appeal court considered that the evidence the judgment was reversed. The can tended to show that after the explo- had been for a time submerged under sion, at least, the defendant realized water, and had again been wet in dethat such new commercial cars were fendant's store, a month before the not proper vehicles, properly accident, and it was held to be error equipped, for the safe transportation to refuse the offer of defendant's of nitroglycerin, and stated that the counsel to show that the defendant fact that the car was blown up was "submitted the powder for examina

or

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