152 Ind. 544 | Ind. | 1899
Action by appellant in the Huntington Circuit Court against appellees, Henry Keefer and the city of Huntington, to recover damages for personal injuries sustained by reáson of an explosion of dynamite in the construction of a sewer in said city. The venue was changed to the Wabash Circuit Court, wherein a trial resulted in the court, upon the evidence, directing the jury to return a verdiet in favor of the city of Huntington, and in giving judgment in favor of the defendant Keefer on the special verdict returned hy the jury in answer to interrogatories submitted under the statute of 1895.
The second additional paragraph of the complaint, which is the only pleading in the náture of a complaint embraced in the record, may be said to be repetitions and diffusive in its averments in respect to the charge of negligence. It discloses, however, among other things, that the defendant, Keefer and one Hailwood were partners, doing business as contractors under the firm name of Keefer & Hailwood. Prior to December 4, 1894, this firm entered into a contract with the city of Huntington for the construction of a sewer. It is averred that in excavating for the sewer it was necessary to remove, along the line thereof, “ledges of hard and flinty stone varying in depth from one to ten feet.” To remove this rock it was necessary to use powerful explosives, in the
The theory upon which the complaint proceeds, as outlined by its material facts, is to the effect that the negligence upon which the plaintiff bases his cause of action is attributable to the fact that more than two of the holes which had been drilled in the stone for the purpose of blasting were loaded and attempted to be discharged at the same time by the means of a defective electric appliance or battery; that, by reason of this unexploded dynamite being left concealed in some of these holes, the place at which plaintiff was at work at the time of the accident was rendered unsafe, which fact was unknown to him; and that said danger was incurred by him when at work in the line "of his duty, and that he was injured thereby as alleged.
Considering the state of the record as it appears in this appeal, and the assignment of errors thereon, the only question presented for our decision is, do the legitimate facts embraced in the special verdict entitle appellant to a judgment under his complaint?
As heretofore stated, the trial court upon the evidence, instructed the jury to return a general verdict in favor of the
It is insisted by counsel for appellees that the facts set out in the verdict show that appellant worked for over four months prior to the accident in the construction of the sewer in question; that he assisted in blasting therein, and that the work of removing the loose stones after the blast was dangerous; that such danger was apparent to a reasonable and intelligent person; that he knew that all of the dynamite at times did not explode, as it is shown he assisted in removing unexploded loads thereof from the stone previous to the accident, etc.; that he made no complaint, but continued in the service of appellees, and thereby, it is contended, he is shown to have assumed all of the risk incident to the service in which he was engaged, and therefore cannot recover. As the judgment must be affirmed for the reasons heretofore stated, we are not required to consider this feature of the case. In support of the rule, under the facts, for which counsel for appellees contend, see Wabash R. Co. v. Ray, Adm., ante, 392, and cases there cited; Kenney v. Shaw, 133 Mass. 501; Rogers v. Leyden, 127 Ind. 50; Griffin v. Ohio, etc., R. Co., 124 Ind. 326; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327.
The judgment of the court in favor of the appellee Keefer