261 Pa. 230 | Pa. | 1918
Opinion by
Plaintiff, an Italian laborer, was employed by defendant in its business of mining slate rock, and was injured January 7, 1915, by the premature explosion of a blast. The business required a large amount of blasting, and plaintiff had been engaged seven years at that work for defendant. He was called a “hole man”; and his work was to load the holes after they had been drilled. He also performed other duties in this mine, where he began work when a boy. On the day in question, a hole three-fourths of an inch in diameter had been drilled to a depth of three and one-half feet, and plaintiff proceeded to load it by putting in blasting powder until the hole was filled to within about six inches of the surface, then he inserted the fuse and put in some hemp rope. After this he took an iron tamping bar, about eight inches long, placed it in the hole and struck it a light blow with a metal hammer; then removed the bar, put in some soil or scrap, replaced the bar and struck it another light blow with the hammer, when the blast exploded causing the injury complained of. Prior to the accident, the only tool used in this mine for tamping was an iron bar similar to that above described. These bars were picked up by the workmen around the mine and on one occasion a fellow employee of plaintiff had made three of them, including the one here in question, by cutting up an iron rod found in the mine. Defendant knowingly permitted the tamping to be done with the iron bars and failed to
The evidence justified a finding that iron bars were unsafe tools to use for tamping loads in blasting • and that defendant was negligent in making general use of them for that purpose. Defendant was engaged in a hazardous business, and it was its duty to furnish such tools as would, so far as reasonably practicable, protect its employees from danger. “In the employment of inherently dangerous agencies, such as powder or other explosives, it is the duty of the master to exercise a degree of care for the safety of the servant commensurate with the danger reasonably to be anticipated. This rule is especially applicable to the plan or method of operation deliberately adopted by the master or his representatives. The master is liable if the injury to the servant is thé result of a defective system not adequately protecting the work
' As plaintiff, had been doing the same work for seven years, it is urged that he assumed the risk. This contention is not without force. However, he was an illiterate foreign laborer, had never been employed in any other mine and, so far as appears, had no knowledge of blasting except as done by defendant. He had never been warned of the danger and might assume that the employer had taken proper precautions for his safety. Under such circumstances the question of assumption of risk was for the jury; as it always is where the facts or inferences are in doubt. See 18 Ruling Case Law, page 692. The rule as to assumption of risk does not apply where the danger is hidden and unknown to the employee. As the court below properly says, “In the absence of any testimony to- the effect that plaintiff had knowledge that an iron tamping bar was an improper tool to use and one which was not in common and ordinary use by other companies engaged in the same line of business the court cannot hold that the plaintiff was charged in this respect with the assumption of the risk.” So far as appears no similar accident had occurred at this mine and the danger was not so obvious and immediate as to convict plaintiff of contributory negligence as a matter of law, merely because he remained at his work.
The assignments of error are overruled and the judgment is affirmed.
