Berg v. Boston & Montana Consolidated Copper & Silver Mining Co., 12 Mont. 212

Berg v. Boston & Montana Consolidated Copper & Silver Mining Co.

12 Mont. 212 | Mont. | 1892

Be Witt, J.

This action is for damages for personal injuries received by plaintiff when in the employ of defendant, alleged to have occurred through defendant’s negligence. Defendant- was engaged in taking rock from a quarry. It was necessary to blast the rock. Plaintiff was a common laborer, working at handling the rock and debris thrown down by the blasting. He was not engaged in the blasting department of the labor. The court granted defendant’s motion for a nonsuit. Plaintiff appeals.

The question before this court is not as to the weight of the testimony, but simply whether it was sufficient to go to the jury. A motion for a nonsuit is practically a demurrer to the evidence. It admits the truth of plaintiff’s testimony. The rule as to submitting a question of negligence to the jury is, as we understand it, that, if the question of negligence is a fairly disputed question of fact, it must be resolved by the jury, but that, if the evidence is perfectly clear to the effect that there was no negligence, the matter is for the court. If the District Court was correct in granting the nonsuit, it must be that the only reasonable conclusion from the evidence was that there was no *216negligence by defendant. In tbis case there is certainly evidence that one Robert Baldwin was the foreman under whom plaintiff was working. Plaintiff testified to this. Defendant may have been able to successfully contradict this testimony, but it did not do so. It cannot, therefore, be said that it so clearly appeared that Baldwin was not the foreman as to warrant the court in so holding. So much for that important fact in the case.

On the afternoon of the accident, defendant, by its workmen, put a charge of three kegs of powder into the rock. The fuse was fired, an alarm was duly given, and plaintiff, with the foreman Baldwin, and the rest of the crew, sought safety in a carpenter shop at a distance. Plaintiff did not know the amount of the charge, the length of the fuse, or the time required for the fire to reach and explode the blast, nor is he chargeable with the duty to know any of these matters. He was working in a department other than that of blasting. After remaining in the carpenter shop for from ten to twelve minutes, and the blast having not yet exploded, the foreman said: “ I guess that the blast is dead. We might as well turn out and go to work." The plaintiff heard this remark. This is substantially the testimony. At least — and this is sufficient in the matter of a nonsuit — there is evidence that these were the facts. The foreman started to go back to the work, and toward the blast. Plaintiff did not follow at once, but turned and took a drink of water, and then followed the foreman. The plaintiff and the foreman were near each other, and not far from the blast when it exploded, injuring them both. These are facts as to which there was evidence. Is it clear that there was no negligence by defendant — so clear that it was the duty of the court to determine the matter at once without the aid of the jury? It is not necessary to decide whether the words of the foreman were an order to plaintiff to return to work.

We are of opinion that the decision in Kelley v. Cable Co. 7 Mont. 70, is decisive of the motion for a nonsuit in this case. In that case the plaintiff Kelley was a laborer in the mine of defendant. It was his duty to go on shift at night, and work at removing material thrown down by the miners during the day. On the night of the accident he went to work as usual, *217and in performing his labor an explosion took place; it not being clear whether from a missed charge or a piece of powder having been accidentally dropped among the debris in which plaintiff was working. The opinion of the court, among other things, says: “It is well settled that this foreman, having the authority to employ and discharge the plaintiff — in fact, having actually employed him and set him to work on many previous occasions, and on this very night — under such circumstances the negligence of the foreman would be the negligence of the defendant corporation. This is really admitted to be the law and the fact by the counsel for respondent. (Spelman v. Fisher Iron Co. 56 Barb. 155.) The prima facie presumption is that the defendant has discharged its duty to plaintiff in this case. Hence this presumption must be overcome by proof of fault on the part of defendant, by showing either that the foreman knew, or ought to have know, that the danger to which the plaintiff was exposed was extraordinary; that is, that there was a charge of blasting powder in the mine, where he was sent to work, which had not been fired. (Wood on Master and Servant, § 368.) If the danger is such that the master, by the use of reasonable and ordinary care, as it is defined in Diamond v. Northern Paeifia Ry. Co. 6 Mont. 580, heretofore quoted, might have known of it, his liability is the same as if he had known it actually. (Wood on Master and Servant, §§ 345, 348, 398, and cases cited.) And in regard to the ascertainment of the condition of this blast the plaintiff had a right to presume that the defendant had done its duty, and to act on that presumption in going to work in the cross-cut, where the blasts had been fired, as he was ordered. (Wood on Master and Servant, § 356; Gibson v. Pacific R. R. Co. 46 Mo. 170; 2 Am. Rep. 497, and cases cited; Wonder v. Baltimore etc. R. R. Co. 32 Md. 411; 3 Am. Rep. 143; Fort Wayne etc. R. R. Co. v. Gildersleeve, 33 Mich. 135.) If the defendant or its foreman knew, or by the use of reasonable diligence might have known, of the existence of the danger from this unexploded blast, it was his bounden duty to convey such information to the plaintiff. (Baxter v. Roberts, 44 Cal. 190-193; 13 Am. Rep. 160; Spelman v. Fisher Iron Co. 56 Barb.165.)”

So in the case at bar it would have required but little dili*218gence on the part of tbe foreman to have known of the danger from this unexploded blast. It is in evidence that the fuse used would burn a foot a minute. The foreman could have readily known the length of the fuse beyond the powder, and very near how much time was required to explode the blast or make it certain that the blast was dead. He could have kept time after the fuse was fired. Three kegs of powder in rock are a dan"gerous agent. As above observed, these facts are all, as the case now stands on motion for a nonsuit, admitted. It cannot be held that it so clearly appears that defendant was free from negligence that the court was justified in taking the matter from the jury, and deciding the case as an undisputed question of fact.

It is ordered that the judgment be reversed, and that the case be remanded for a new trial.

Reversed.

Blake, C. J., and Harwood., J., concur.