hereto as A, and the said Opal Perkins, upon his death, left surviving his as his heirs at law and next of kin his father, Perry Perkings, and his mother, Nora Perkins, for whose use and benefit this suit is brought. 3. On or about October 25, 1935, the defendant, Campbell County, was the proprietor of the public highways of said county, and the defendant, Frank Baird, was the duly elected, qualified, authorized, employed and acting superintendent of roads of said county, and a resident and citizen of said county. On or about said date the defendant, Campbell County, by and through its said road superintendent, its agent and servant was engaged in reconstructing and repairing the public highways of the county which pass through the town of Newcomb, an unincorporated but populous little village of said county. Said public highways are macadamized roads, one of which, leading from Jellico to Elk Valley, passes in front of the homes of various citizens and within a few feet thereof, and the other of which, leading from Woolridge to Newcomb, likewise passes within a few feet of various dwellings and intersects said Jellico-Elk Valley Highway near the middle of said village of Newcomb. Near said junction on the side of said Woolridge-Newcomb Highway, just across said highway and within a few feet of Elphis Ridenour's home, is, and was on said date, a small vacant strip of land belonging to a resident of Newcomb and lying on the edge of the said highway. 4. One of the public schools of said county was located on said WooldridgeNewcomb Highway within a very short distance of said junction, and the space on and near said two highways at the point of said junction was regularly used by the school bus in carrying the schoolchildren, or a number of them, as a station for waiting and for getting on and off of said bus. Said location or corner at said junction was daily and commonly used by schoolchildren, and by many too young to go to school, as a sort of playground, and was the only highway over which the schoolchildren living in Newcomb could travel to and from said public school. Said junction is in the midst of said town of Newcomb, and said highways at said point and in said town are bounded by residences and stores and continuously traveled day and night by men, women, and children, on foot and in motor and other conveyances. All of which is, and on said date was, common knowledge, open and notorious and was well known and fully understood by the defendants. 5. On or about said date the defendants were repairing said highways by filling the holes, ruts, and worn places in said macadamized roads with crushed stone or macadam which was first mixed with some sort of petroleum, bitumen, asphalt, mineral pitch, or other tar-like liquid, which contained benzene, gasoline, gas, naphtha, kerosene, or other flammable oils and gases of a highly explosive nature, and which defendants obtained in large metal drums with a hole in the top or side for releasing the contents. After emptying and using the contents of said drums the empties were of no further use or service to the defendants in making said repairs, and, instead of removing said empty drums to a place of safety or protecting and guarding same, the defendants, on said date and prior thereto, with full knowledge of the character and danger of said contents, and well knowing that said drums were never and could not be fully and cleanly emptied but that enough always remained therein to render them flammable and explosive and dangerous to life, deposited and stored said empties at the junction of said two highways in the midst of the town of Newcomb on the edge of said Wooldridge-Newcomb Highway and said vacant strip of land on the side of said highway where children were in the habit of congregating and playing, and without any notice, warning or protection whatever, and kept said empties stored at said place for a week or 10 days at a time, thereby creating and maintaining a place of danger, deathtrap for children, and a public and private nuisance. 6. On or about said date, the plaintiff's intestate, Opal Perkins, who was a child 12 years of age and wholly ignorant of the danger lurking in said empty drums, was playing on the side of said Wooldridge-Newcomb Highway, at said junction and vacant strip of land, where the defendants had left 2 of said empty drums and allowed them to remain for several days without warning or protections, with some of his companions, also of tender age and ignorant of said danger, when 1 of said small children playfully and ignorantly dropped a lighted match in the hole in the top of 1 of said empty drums, in which had accumulated flammable and explosive gases, fumes, or vapors, yielded and released from the remains of the contents after emptying and using, as a result of which there was an instantaneous explosion, destroying both of said empty drums, killing 1 of plaintiff's intestate's companions instantly, maiming and seriously injuring another, and instantly killing plaintiff's intestate, said Opal Perkins. 7. Plaintiff avers that his said intestate, Opal Perkins, was instantly killed as aforesaid, as the direct and proximate result of the defendants' aforesaid acts in storing and leaving unprotected said highly flammable and explosive empty drums on the side of said highway in the midst of a populace community where children of tender age were accustomed to gather and play, without warning or protection, thereby creating and maintaining a public and private nuisance, and the plaintiff, Perry Perkins, as the administrator of Opal Perkins, deceased, sues the defendants for $25,000 as damages and demands a jury to try the issues joined in the case. SECOND COUNT The plaintiff sues the defendants for the further sum of $25,000 as damages and for cause of action avers: Reference is here made to paragraphs 1, 2, 3, and 4 of the first count of this declaration, and the averments therein contained are hereby adopted as averments of the second count, and same are made a part of the second count as fully and particularly as if literally copied and embodied herein. On or about said date, the defendants were using in repairing said highways a preparation of petroleum, or its byproducts, or bitumen, or asphalt, or mineral pitch, or other tar-like or similar liquid or fluid, which contained benzene, gasoline, kerosene, gas, naphtha, or other volatile and flammable gases and oils of a highly explosive nature. Said preparation was obtained and received in metal drums with holes in the top and side for releasing and emptying. Said metal drums could not be cleanly and fully emptied but, being a sticky material, a portion of it stuck to the top and bottom and to the sides and would settle to the bottom when the drums were left standing. The holes in top or side were very small, preventing circulation and escape of the gases and vapors which formed on the inside of the drums and converted them into explosives. Said drums were large, having a capacity of many gallons, and when emptied and left standing became highly explosive and flammable, dangerous to life and property. All of which was well known to the defendants or could have been by the exercise of ordinary care and common prudence. When said drums were emptied of all of their contents which would readily flow through said hole, they were of no further use or service to the defendants in making said repairs, and thereupon the defendants stored and kept same for a week or 10 days or more at a time on the side of said Wooldridge-Newcomb Highway near said junction and on said vacant strip of land contrary to section 5690 of the New Code of Tennessee which provides for the regulation of the keeping, storage, use, manufacture, and transportation and handling of highly flammable materials, crude petroleum or any of its products, explosives or flammable fluids or compounds, or any explosives of like nature, or any other explosives, by the commissioner of labor. By virtue of the authority vested in him by said section and in pursuance thereof, the commissioner of labor, prior to said date, had made and promulgated the following regulation: "The term 'explosive' or 'explosives' whenever used in this regulation shall be held to mean and include any chemical compound or mechanical mixture that contains any oxidizing and combustible units or other ingredients in such proportions that ignition by fire, friction, concussion, percussion, or detonation may cause a sudden generation of gaseous pressures capable of producing conditions destructive to life or property.' Explosives in any amount exceeding 10 pounds may be stored or manufactured beyond the corporate limits of any city, town or village provided such building or buildings containing such explosives are so located as not to place in jeopardy lives and property of others, and provided that a permit must be obtained from the State commissioner of fire prevention who must first determine that such plant is safely located. Notwithstanding said section of the code and said regulations by the commissioner of labor, the defendants, without a permit or other authority, and in violation thereof, kept and stored said highly explosive and flammable empty and full drums of highly flammable materials, crude petroleum and its products, explosives and flammable fluids and compounds, or explosives and flammable material of like nature, at or near said junction of highway in the midst of said town on the side or edge of said highway, without warning or protection thereby placing life and property in great danger, and creating and maintaining an explosive and flammable plant on the public highway where the traveling public had to pass and where children of tender age were wont to gather and play. On or about said date, the plaintiff's intestate, Opal Perkins, 12 years of age and not knowing the character and danger connected with said drums, was playing with some companions of similar age and ignorance, when one of them innocently dropped a lighted match into one of said empty drums, loaded with gases, fumes, and vapors generated and released by said flammable and explosive material left therein as a result of which there was an instantaneous explosion which killed and maimed two of the companions of the plaintiff's intestate, and which instantly killed the plaintiff's said intestate, Opal Perkins. Wherefore, the plaintiff sues the defendants for said sum of $25,000 as damages and demands a jury trial CLARENCE TEMPLETON, Attorneys for Plaintiff. OFFICE OF CLERK OF COURT OF APPEALS FOR THE EASTERN DIVISION OF THE STATE OF TENNESSEE I, W. H. Eagle, clerk of said court, do hereby certify that the foregoing is a true, perfect, and complete copy of the declaration as appears in the transcript of the record, in the case of Billie Ray Ridenour, by n. f. d., against Campbell County, Frank Baird, superintendent et al., as appears of record now on file in my office. In testimony whereof, I have hereunto set my hand and affixed the seal of the court, at office in Knoxville, on this the 23d day of July 1949. JUNE 9 (legislative day, MAY 13), 1954.-Ordered to be printed Mr. LANGER, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 5436] The Committee on the Judiciary, to which was referred the bill (H. R. 5436) for the relief of David Hanan, having considered the same, reports favorably thereon with an amendment and recommends that the bill, as amended, do pass. AMENDMENT On page 2, lines 5 and 6, strike the words "in excess of 10 per centum hereof". PURPOSE The purpose of the proposed legislation, as amended, is to pay to David Hanan, of Chicago, Ill., $3,000, in full settlement of all his claims against the United States for personal injuries, medical, and hospital expenses, sustained by him as the result of improper surgical treatment which he received from personnel of the United States Army in an operation on April 1, 1943, at Camp Claiborne, La., causing continuing personal injury and pain and suffering and necessitating a further operation by civilian doctors which disclosed a surgical sponge in his abdomen, STATEMENT The claimant in this case, while serving in the Army at Camp Claiborne, La., was seriously injured in an accident on the morning of April 1, 1943. On the same day, he was hospitalized and operated on at the station hospital. It was found that he had a ruptured spleen and a ruptured left kidney. His spleen was removed and the left kidney was sutured and left in place. |