Tissue v. Baltimore & Ohio Railroad ( 1886 )

Mr. Justice Gordon

delivered the opinion of the court, March 29th, 1886.

The dynamite magazine, from the explosion of which Tissue lost his life, was placed in the position which it occupied; by the direction of Thomas D. Armstrong, who filled the position of superintendant of the work at the-tunnel, and in this he acted under the instructions of Mr. Yardly, the master of the road. This act, then, so far as it concerned subordinate' employés, was by the corporation itself, and cannot be attributed to any of the fellow servants of the deceased: Frazer v. The Pennsylvania Railroad Co., 2 Wr., 102; Patterson v. Pittsburgh & Connellsville R. R. Co., 76 Pa. St. Rep., 389. As it is impossible to tell what was the immediate cause of the explosion, it would be by no means fair to charge it to the negligence of any one. Nor was Tissue in any way connected with the magazine, or with the work for which it was used; he was a flagman on the gravel train, and with that train and its hands, Armstrong, the superintendent of the tunnel.work, had, according to his own testimony, nothing to do. This, however, we do,not regard as a material point-in the case, for the determination of the issue rests not upon' the resolution of the question whether Tissue was or was not a eo-employé with those working in or about the tunnel, since the disaster, as we have seen, did not result, so far as is -known, from the negligence of any one. The inquiry is rather as to the negligence of the company in permitting so great a quantity of dynamite to be placed in such a position that an accidental explosion of it might result in death or injury to its servants.

Whilst it is true that the master does not warrant the absolute safety of those whom he employs to do his work, yet, as we held in the case of The Green & Coates Streets Passenger Railway Co. v. Bresmer, 1 Out., 103, he is bound to take heed that he does not through his own want of care expose his servant to unnecessary risks or dangers, either from the character of the tools with which he supplies him, or the place in which he requires him to operate. As the question growing out of what-is here stated is one of fact it can only be determined by the verdict of a jury. Ought the company’s superintendent to have known that in placing the magazine where it was placed he was exposing the men engaged in operating the road, as well as others, to a danger to which they ought not to have been exposed ? The question is not whether he did have knowledge of the peculiar properties of the material which he-was intrusted to handle, for his ignorance in this particular would be no excuse - for the company, but whether the agent thus intrusted ought to have been one who knew that dynamite was, from its nature, liable to accidental explosions such as could not be ordinarily foreseen or provided against. We would, indeed, be unwilling to assume that either Yardley or Armstrong knew that he was subjecting these laboring men to a danger so frightful. They may, like the men themselves, have entertained the common idea, that dynamite could not be exploded but by-the ordinary method of percussion. But,, as we have said, this ignorance, if ignorance it was, will not excuse the company, for there was a duty resting upon it to know, as far as it was possible to know, the character of the material which it placed .in the hands of its agents. In this we are not to be understood as pronouncing upon the chemical characteristics of dynamite, for about it we know little or nothing, or as charging negligence on the company or its agents. The act of putting the magazine where it was may have been prudent, or at least not unreasonably imprudent, and the explosion may have been the result of an accident which no ordinary human foresight could provide against, hence, one for which no one can be held responsible. But however this may be, the matter is, under all the evidence, for a jury, and to a jury it must be referred.

The judgment is reversed, and a new venire ordered.

Green, J., dissented.