Brotzki v. Wisconsin Granite Co.

142 Wis. 380 | Wis. | 1910

SiebecKER, J.

Erom the above detailed statement of the case it is apparent that the defendant had always conducted its quarry business, including the operation of blasting, in the manner in which it was being conducted at the time the plaintiff was injured by a premature explosion, and that it had always used steel gauge rods in loading the blast holes with powder, as was done by the plaintiff on this occasion. There is evidence tending to show that the use of such steel gauge rods is liable to cause sparks to be emitted through friction produced by contact of the steel rod with sharp projections of the rock on the sides or walls of the blast holes, and that this danger does not exist when wooden or copper gauge rods are used. The court awarded a recovery upon the ground that the steel gauge rod furnished by the defendant to plaintiff to do this blasting operation was not a reasonably safe appliance, and that the defendant was negligent in not warning the plaintiff of the dangers incident to so using such a rod in the performance of his duties. There is no controversy that the defendant had the legal right to use this steel gauge rod as it did in conducting its business of blasting, and that this in itself did not make it liable to the plaintiff, though this constituted negligence in the manner of conducting its business. The law is well established that a servant assumes the risks and dangers ordinarily incident to his employment if they are so obvious that the servant is presumed to know of their existence, and that the master is not required to warn a servant of ordinary intelligence, knowledge, and experience of such dangers. This rule is aptly stated in Dahlke v. Ill. S. Co. 100 Wis. 431, 76 N. W. 362, as follows:

“The duty to instruct does not go so far as to require the master to acquaint the employee with every possible danger to which he may be subjected in the course of his employment. The master has a right to assume that the servant will see and appreciate those dangers which are open and obvious to a person of ordinary comprehension.”

Dougherty v. West Superior I. & S. Co. 88 Wis. 343, 60 N. W. 274; Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049; Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289.

The rule applicable to a state of facts like those of the instant case is stated in another case as follows:

“The servant assumes the dangers of the employment to which he voluntarily and intelligently consents, and, while ordinarily he is to be subjected only to the hazards necessarily incident to his employment, if he knows that proper precautions have been neglected, and still knowingly consents to incur the risk to which he will be exposed thereby, his assent dispenses with the duty of the master to take such precautions.” Leary v. B. & A. R. Co. 139 Mass. 580, 2 N. E. 115.

The inquiry, then, is: Did the plaintiff assume the risk from dangers incident to defendant’s neglect in furnishing him with a steel gauge rod for performing the operation of blasting in the quarry? As above stated, this danger is alleged to arise from sparks produced by friction when the steel rod comes into contact with the rock on the sides of a blast hole. It appears that the plaintiff is a man of average intelligence, that he had worked in the quarry business for a number of years as a driller, and that he had worked two years as a helper to the blaster and for one year as blaster. Knowledge of and skill in blasting are shown to be acquired by observing how the work is done by the experts in the business, by helping them, by doing the work personally, and by observing the operation and the results of blasting. The plaintiff had had experience in all of these respects to the extent stated. We must therefore conclude that he was an expert and experienced blaster, and, as such an expert, he must be presumed to have had knowledge of such open and obvious dangers, incident to doing blasting, as such a skilled person of ordinary intelligence, knowledge, and experience possesses, “wh.etb.er they arise from the nature of the business, the particular manner in which it is conducted, or the use of defective or unsafe appliances.” There is no evidence tending to show that the plaintiff had not capacity to understand the character of the dangers incident to the operation of blasting, or that he did not comprehend and understand the operation of the natural laws regarding the production of sparks by friction through a contact of this steel rod and the granite rock. These are the dangerous conditions of which the plaintiff alleges that he had no knowledge and which he claims were so hidden and concealed in their operation that he, as blaster, ought not to be held to have assumed the risk of injury from them while performing his duties. All the conditions surrounding the plaintiff at his work, aside from the use of the steel rod, are those which accompany and arise in the usual and ordinary method of doing blasting in granite quarries and commonly attend the work, and he must therefore be presumed to have had knowledge of them. It therefore follows that the plaintiff presumably knew the nature and condition of the blast holes as to roughness and unevenness of the sides or of sharp projections of the rocks in the walls, and, knowing them, he was, under the circumstances, charged with the knowledge that his use of a steel rod like the one used on this occasion might produce a spark by contact with the rock. It thus appears that the danger complained of is the result of known and obvious conditions and the operation of natural laws. We do not perceive how this can, under the surrounding conditions, be said to be a secret and unknown danger which an intelligent and experienced blaster does not comprehend. The very nature of his expert information tends to impart this knowledge and thus inform him on this subject. It is probable that such expert blasters have more knowledge concerning the art and a better comprehension .of such dangers as are here complained of than the employer, who is held to a full knowledge of tbe subject in tbe conduct of bis business. We are constrained to bold, upon tbe facts proved and tbe rule of law applicable thereto, that tbe plaintiffs injuries resulted from risks and hazards which attended obvious and known dangers incident to tbe manner of .conducting tbe blasting operations in which be was engaged. Tbe fact that the plaintiff bad no knowledge of tbe process and dangers of blasting except what be bad acquired while in defendant’s employ and at work in its quarry does not relieve him from the consequences of bis assumption of this risk, since it was one which be, under tbe circumstances of tbe case, must be held to have comprehended and understood. Dougherty v. West Superior I. & S. Co. 88 Wis. 343, 60 N. W. 274; Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289; Leary v. B. & A. R. Co. 139 Mass. 580, 2 N. E. 115.

In this view of tbe case it is not necessary, for a final determination of tbe case, to consider other questions raised on this appeal. We will, however, add that after a careful examination of tbe evidence we are persuaded that tbe proof is insufficient to sustain the jury’s answer to question 1 of tbe special verdict, finding that tbe explosion which injured tbe plaintiff was set off by a spark caused by friction of tbe ■steel rod against tbe rock in tbe walls of tbe blast bole. A discussion of tbe evidence on this point is not required in view of tbe conclusion that tbe plaintiff has no cause of action on tbe grounds above stated.

By the Court. — Judgment reversed, and tbe cause remanded to tbe trial court with directions to dismiss the complaint.

TimliN, J., dissents in part