FLASHBACK:  Danger!  Danger!

The year was 1927.  Howard Wellman was an 11-year-old boy whose father worked for the neighboring coal company.  Together they lived in a company-owned house near the mine.  Howard, his brother, and his friends liked to play in the vicinity of a small building where powder for mine was kept.  One January evening, the boys overheard two of the miners say that a keg of powder had dropped on the ground and burst open.  The boys located the keg and helped themselves to some of the powder.  Within a short time, they began throwing the powder into an open fire.  As a result, Howard suffered burns that proved to be fatal.

The coal company presented a strong case.  Its powder was always kept under lock and key.  The kegs they used for storing the powder were known for their safety.  The evidence also showed that the boys had lived near the mine for their entire lives and understood that powder was combustible.

But had the company done enough?  The jury did not think so, and, in the end, the Supreme Court agreed.  The Court stopped short of announcing a rule of strict liability, but it did impose a very high duty of care on the company.  Recognizing that powder was “extremely dangerous,” the Court held that anyone “in possession of a dangerous instrumentality must use due care and prudence to avoid injury to others.”  Furthermore, that duty “is not one whit” changed by delegating it to someone else.  In this particular case, the Court found that by creating circumstances under which the boys could access the powder, the company was, indeed, liable:

“Here the handling of powder, an extremely dangerous instrumentality, was delegated by the defendant company to its servants…  In the persecution of their task these servants negligently caused or permitted (it makes no difference which) these children to have an opportunity to secure some of the powder.  That powder brought about the death of plaintiff’s intestate.  Why, therefore, should not the defendant company respond in damages?”

It would be decades before West Virginia  applied strict liability principles in cases involving dangerous instrumentalities or activities.  But almost exactly 100 years ago, working within the framework of existing law, the Court managed to reach a fair result and even foreshadow changes that would come in the future.

Wellman v. Fordson Coal Co., 105 W.Va. 463, 143 S.E. 160 (1928).

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