#### W. L. LANGLEY v. C. A. MISENHEIMER.

(Filed 21 May, 1919.)

Negligence — Explosives—Dynamite—Master and Servant — Evidence—Instructions — Trials.

In tliis action to recover damages for tlie alleged negligence of defendant’s employees having in their possession, with the knowledge of the defendant and for his use, dynamite caps, one of which was carelessly left or exposed and exploded, causing the injury to plaintiff, defendant’s; lessee, while engaged in defendant’s service, the evidence was unconfliet-ing that, of two of these employees, the caps in their possession could not have caused the injury, or that the defendant could not have been aware-of the fact that they had them, leaving evidence only of one of these employees having the caps under circumstances wherein the defendant could have been held responsible: Helé, not error to the plaintiff’s prejudice for the judge in his charge to confine the jury in their inquiry to this one-*539employee, and not objectionable under a further charge that the defend-ant would be responsible if any employee had carelessly so left these caps that they exploded, and thus' proximately caused the injury alleged.

Appeal by plaintiff from Harding, J., at tbe September Term, 1918,. of GastoN.

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff by the explosion of a dynamite-cap on the lands of the defendant, which the plaintiff had leased, the plaintiff at the time of the explosion being engaged in heating water for killing hogs of the defendant.

The plaintiff was injured on 24 February, 1914. The evidence tended to show that in August, 1913, the defendant had a stone house built on said land within about twenty feet of the house at that time occupied by tenants of the defendant, and that dynamite was used in blasting rock for the construction of the house; that John Fisher, who was then a tenant and employee of the defendant and living upon the premises, bought the dynamite with the knowledge of the defendant; that while-the house was being built Moses Wright, another employee of the defendant, was .seen at one time to bring a bundle of dynamite from the house and place it on the ground not far from the place of the explosion, in February, while he lighted a pipe, and that he then took up the bundle and carried it to the place of the blasting three or four hundred yards distant; that another employee; of the defendant named Robinson bought fifty sticks of dynamite, all of which was used in shooting-holes for the planting of pecan trees.

There was no evidence that any part of the dynamite brought from the house by Wright was left on the ground nor was there any evidence that the dynamite used by Robinson was at any time in or near the premises where the explosion took place, and Fisher testified that he did not carry the dynamite he bought for the defendant near the place of the explosion, and, on the contrary, he stored it in a house about a hundred yards distant.

His Honor, among other things, charged the jury as follows: “That there is no evidence in this case from which the jury can find that the dynamite cap which the plaintiff claims exploded, causing his injury, was left on the premises by any other tenant or employee of the defendant than Fisher, and therefore, in passing upon the issue of negligence, the jury will leave out of their consideration altogether evidence tending to show that one German Robinson had some time prior to the plaintiff’s injury used dynamite caps in a field some one-fourth or half mile from the place of the injury for the purpose of blasting holes for pecan trees,” and the plaintiff excepted upon the ground that the charge *540excluded from tbe jury tbe consideration of tbe conduct of all tbe employees of tbe defendant except Eisber.

There was a verdict in favor of tbe defendant, and from tbe judgment entered thereon tbe plaintiff appealed.

Mangvm & Woltz attorneys for plaintiff.

Gansler & Gansler, Carpenter & Carpenter, and Thaddeus A. Adams attorneys for defendant.

Per Curiam.

Tbe evidence in this case, while probably sufficient to be submitted to a jury, was largely conjectural in character.

Tbe injury was in February, 1914, and tbe evidence shows that tbe dynamite carried on tbe premises, with tbe consent of tbe defendant, was used in August, 1913, six months before.

Tbe explosion was in tbe yard about twenty feet from tbe bouse, and there is no evidence that any one procured dynamite except Eisber and Robinson.

Eisber testified: “As to where I took tbe dynamite when I carried it home, will say there was a cotton bouse about one hundred yards from the bouse, so I took it there and put it there. I bad children and did not want them to get bold of tbe dynamite and caps, and I locked tbe dynamite and caps up. As to bow far from tbe cotton bouse tbe blasting was done and which way you would go from cotton bouse to tbe blasting, will say some three or four hundred yards; cotton bouse was between tbe bouse and tbe place where tbe blasting was done.

“No, I didn’t pass through tbe yard either way. I remember there was one negro helping me with tbe blasting and be bored one more bole than I bad caps for. I thought I bad more caps and dynamite and I bad used all tbe dynamite and caps I had.”

And Robinson: “Lived on Dr. Misenbeimer’s farm in 1912. Used fifty dynamite caps to shoot out pecan tree boles. Dr. Misenheimer told me to use them; got them at tbe Charlotte Hardware Company in January, 1912. Carried them to tbe field where tbe pecan trees was, about half a mile from tbe house. Tbe pecan orchard was between Charlotte and tbe bouse. Never carried none of those dynamite caps or any of tbe dynamite to tbe house; put them in a sack at Charlotte Hardware Company and put them out there in an old field until I could use them.”

Tbe only other evidence of dynamite in possession of any employee of tbe defendant is from a witness Brice, who said: “I saw Moses Wright come out of tbe bouse with dynamite wrapped up in paper. Came out of tbe porch, and be stopped to light bis pipe there where I was waiting on tbe masons, and after be lighted bis pipe be took tbe *541dynamite and went on down tbe road. Just saw tbe dynamite; did not see tbe caps at all; saw tbe fuse; tbe paper was not tied up; was in a bundle libe. I did not see no strings to it. After be got done lighting-bis pipe, picked it up and went on.”

Tbis recital of tbe evidence shows that tbe dynamite used by Robinson was not at any time near tbe place of tbe explosion, that be bad only fifty sticks, and that all were used in shooting tbe boles for tbe pecan trees, and tbe part of tbe charge excepted to was simply for tbe purpose of excluding from tbe consideration of tbe jury tbe evidence-as to Robinson’s having dynamite, with tbe knowledge and approval of tbe defendant, which it was proper to do. He could also with propriety have excluded tbe consideration of tbe dynamite brought from tbe bouse by "Wright because tbe same witness who testified to tbis fact said that after Wright lighted bis pipe be picked up tbe bundle and carried tbe dynamite away, and there is no evidence that any part of" tbe dynamite was left on tbe ground, but bis Honor did not withdraw tbis evidence from tbe jury, and on tbe contrary be charged tbe jury as follows, at tbe request of tbe plaintiff: “Although tbe plaintiff did not show by direct evidence as to bow any dynamite cap which exploded and injured tbe plaintiff, if you find a dynamite cap did explode and injure tbe plaintiff, was placed in or near tbe fire mentioned in plaintiff’s evidence, if you find it was so placed, still if, from all tbe circumstances, you find by a greater weight of tbe evidence that any such cap was carelessly left at said place by any employee of tbe defendant acting within tbe scope of bis employment, and tbe plaintiff was injured by an explosion of such cap, and any such careless acts were tbe proximate cause of plaintiff’s injury, it will be your duty to answer tbe first issue-‘Yes,’ ” thereby leaving tbe evidence as to Moses Wright, who was an employee, to tbe jury.

We have carefully examined tbe record and find no error which entitles tbe plaintiff to a reversal of tbe judgment.

No error.