86 Vt. 175 | Vt. | 1912
At the close of the plaintiff’s opening ease a verdict was ordered in favor of the defendants on the ground that no breach of any legal duty owing by the defendants to the intestate was shown by the evidence. Was this error? is the sole question.
The controlling facts fairly and reasonably within the tendency of the evidence may be stated as follows: The defend- ■ ants, operators of a quarry, were engaged in quarrying and removing slate rock from the pit of their quarry, and manufacturing the same into slate products. The butt of the quarry is on the east, and is a more or less perpendicular face of rock formed by cutting down into the slate veins from above, and removing the slate rock in a westerly direction therefrom. The sides of the quarry are at the north and the south. The pit was of varying depths, and the different elevations in the floor or bottom of the quarry are described as benches or shelves. The slate lies in veins, and is separated into more or less detached pieces by joints or seams. Bach of these pieces of slate is known and spoken of as a head of slate, and is separated from another head back of it by a butt joint, also from another head on either side (may be), by a joint. Slate may be attached to rock on one or more sides so there is no joint. The heads of slate are often imbedded in streaks of poor rock, varying in width, running through good slate rock, called posts or pillars, which form a support to the heads of slate. The defendants’ quarry is jointy. In quarrying one object is to get the heads of slate out free from the joints as nearly whole as possible. The pit of the quarry is divided into sections, known as inclines, and numbered 1, 2, 3, and 4, respectively, in their order from south to the north.
At incline No. 3, there was a head of slate projecting out from the butt of the quarry with a supporting pillar of rock underneath it. A day or two before the accident the foreman caused seven holes to be drilled in that incline. The intestate had nothing to do with the drilling of them, except that he helped to set up the drill. Five of these holes were underneath this projecting head of slate, three of which, eight feet deep, were in the bench of the incline close to the butt of the quarry and ran up and down; two, six feet deep, were in the roof, about ten feet lower down than the projecting head, but opening up toward it; and the other two, were lower down in the pit. The purpose and effect of the first five holes here mentioned were to blast out the rock underneath this head of slate, so the latter could be freed in the process of quarrying it. One witness of long experience in this kind of work said the general effect of blasting two holes underneath such a head of rock is to weaken the top so it will have to fall sooner or later.
In the forenoon of the day of the accident the foreman directed the intestate to fire the two holes lowest down in the pit, at the same time ordering the man who drilled the holes, he being an experienced quarryman, to help the intestate in so doing. After these holes were fired, the foreman went down into the quarry to see the blast, and then told the intestate to fire the other five holes, which he did, all five going off together. On giving the last order and before the blast, the foreman went out of the quarry and was not in it again before the accident. In cleaning up the rock thus blasted out, the intestate found a crack some two inches wide about a foot below the roof holes,
This rock was moved out enough from its natural bed by the blast of the five holes so that the crack caused thereby in the butt was visible from the top of the bank of the quarry before noon; but this crack could not be seen from where the intestate and his helper were working in the pit, and they had no knowledge or information concerning it, nor that the rock had thus moved before it fell. Nor, so far as the case shows, did the foreman know or have notice that the position of the rock had in any way changed before the accident, though an examination would have disclosed that fact. Subsequent to his leaving the quarry in the forenoon as before stated, he did not make any .inspection of the head of slate or its surroundings, to ascertain the conditions as the work progressed.
The contention of the plaintiff is, as it was in the court below, that the defendants were negligent (1) in not providing
Respecting the first ground of this contention, the work the intestate was doing at the time in question was along the line of the ordinary duties of his employment. The getting out of this head of slate rock was the purpose and object of the blasting done to take away its supporting rock underneath, and the roof holes fired were well calculated to' cause it to fall. We think the intestate and his fellow workmen were practically making their own working place as an incident to the quarrying being done. Every succeeding blast effected a change in the conditions and surroundings, and the dangers to which they were exposed were the direct result of their own operations. In such circumstances the ordinary rule requiring the master to furnish the' servant a safe place in which to perform the duties of his employment does not apply. Petaja v. Aurora Iron Min. Co., 106 Mich. 463, 58 Am. St. Rep. 505; Mielke v. Chicago & Northwestern Ry. Co., 103 Wis. 1, 74 Am. St. Rep. 834; Coal and Min. Co. v. Clay, 51 Ohio St. 542; Perry v. Rogers, 157 N. Y. 251; Capasso v. Woolfolk, 163 N. Y. 472; Di Vito v. Crage, 165 N. Y. 378; Russell v. Lehigh Valley R. R. Co., 188 N. Y. 344, 81 N. E. 122, 19 L. R. A. (N. S.) 344; McGinty v. Athol Reservoir Co., 155 Mass. 183; Fraser v. Red River Lumber Co., 45 Minn. 235; Montgomery v. Robertson, 229 Ill. 466, 82 N. E. 396; Thurman v. Pittsburg & Montana Copper Co., 41 Mont. 141, 108 Pac. 588; Jacoby Co. v. Williams, 110 Va. 55, 65 S. E. 491; Heald v. Wallace, (Tenn.) 71 S. W. 80; Oleson v. Maple Grove Coal & Min. Co., (Iowa) 87 N. W. 736; Finalyson v. Utica Mining and Milling Co., 14 C. C. A. 492, 67 Fed. 507.
Taking up the second ground of the plaintiff’s contention, Were the defendants in duty bound by law to protect the intestate by inspecting the progress of the work in which he was engaged, and warning him against impending ordinary dangers incident to • the performance of his duties ? Certainly the dangers naturally attending the details of the work as it progressed in the process of accomplishing the object sought cannot be classed otherwise than of this character. The blasting effected its purpose, nothing more. According to the evidence, the consequential result was inevitable, namely, the projecting rock must fall
Judgment affirmed.