106 So. 281 | Miss. | 1925
The appellant brought a suit for the death of her husband, who was killed in the employ of the appellee. The appellee was a contractor engaged in cutting a drainage canal, and it had the right of way cleared for a considerble *352 distance and had brought the dredge boat machinery for the dredging operation upon the premises, and it was being set up by a crew of men in which the appellee himself was engaged, and another employee of the appellee was engaged in blasting stumps from the right of way, and the injury to the deceased was caused by a fragment of the stump being hurled through the air to a great height and falling upon the head of the deceased, crushing his skull.
The plaintiff introduced the defendant, who testified that generally he kept the dynamiting crew at a considerable distance from the dredging boat and dredging operations; that he did this because it was dangerous to the employees, because in blasting stumps sometimes the debris would be thrown a considerable distance as far as two hundred yards sometimes; that the operation of the blasting which caused the injury was two hundred fifty to four hundred fifty feet from where the deceased and other men were working on the drainage boat putting it in shape to be operated; that the person who conducted the blasting operations generally gave signals in sufficient time for the men within range of the dynamiting operations to get to a place of safety; that at the time deceased was killed he was at work on the dredge boat with other men, and he did not hear the signal given by the party doing the blasting. The defendant also testified that the deceased at some time during his employment had himself operated the blasting operation. The plaintiff offered other proof to show the relation of the deceased to her, as her husband, and that she and the children were dependent upon him for support.
The plaintiff also offered as a witness the person who conducted the blasting operation, who testified that he was a brother-in-law of the deceased, and that he put the fuse to the dynamite before lighting it, and that the fuse was of such length that it would take about two minutes before the explosion took place; that when he lighted these fuses he gave the warning, "Fire in the hole," and himself sought a place of safety. He testified that he was *353 within about two hundred fifty feet of where the men were working on the dredge boat; that it was the rule to conduct dynamiting operations approximately two thousand feet from the dredging operations; that he placed five sticks of dynamite in the stump in question for the purpose of exploding it, and that it was customary to place from three to fifteen sticks of dynamite in the stump according to the size, character, etc., of the stump; that the dynamite would drive the stump from the ground. He further testified that the place where the men were working was a safe place to work.
When the plaintiff closed, the defendant moved to strike out the evidence and direct a verdict for the defendant, which motion was sustained. After this motion was sustained, the plaintiff requested permission to reopen the case and introduce further evidence, to which objection was interposed by the defendant, when the court stated:
"As I understand it, this is not for the purpose of introducing further testimony on the merits of the case. That has been passed upon and the jury has been discharged. I will permit the case to be reopened."
Thereupon another witness was introduced, who testified that he was standing near the deceased when the stump was blasted, and that he heard the warning and saw the missile flying through the air from one hundred to one hundred fifty feet in height, and that he sought a place of safety; that he did not see the missile strike the deceased; that so far as he knew the deceased was able to hear all right; that when he next saw the deceased he was lying on the ground unconscious and had been struck by something; that he did not know whether anybody saw deceased when he was hit or not; that there was no falling around the machinery of any of the machinery; that the only thing which fell was this root from the stump which had been blown through the air. This witness also testified that he had worked in the dredging business for a number of years for others as well as the defendant, and that the operations of all of them were *354 conducted pretty much as the defendant conducted the operations here; that sometimes it was necessary to blow out a stump in order to operate a dredge boat, and that a stump might be concealed in the ground so that in the regular operations it would not be blasted out; that it was customary to shoot stumps out with dynamite.
We have held in this state that a person using the dangerous agency of dynamite should exercise the highest degree of care so as to prevent injuries calculated to flow from the negligent handling of this strange and dangerous agency. McTighe, etc.,
v. Johnson,
The appellee contends that these cases do not apply to employees engaged in the service of persons using dynamite in such operations, that a person engaged in such service assumes the risk usual to such occupation, and that by necessity he assumes the risk of the great dangers involved in such operations.
The rule stated would apply so far as the person engaged in blasting operations is concerned, provided the master is not negligent. Our statute, section 504, Hemingway's Code (Laws of 1914, chapter 156), provides:
"In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence of the master," with certain exceptions not applicable to the present case.
The deceased here was not engaged in such operation and was not called upon to assume the dangers attending the blasting operations if they were negligently conducted.
It is insisted by the appellee that the doctrine of a safe place to work is not applicable here because of the dangerous conditions of the work as it progressed. The injury here did not result from the operation of the work in which the deceased was engaged. The injury did not flow from the operation of the work that deceased was *355 engaged in, but from a separate and independent operation.
We think this case should have been submitted to the jury under proper instructions of law as to whether it was negligence in conducting the dynamiting operations within the range of other work where the safety of other employees engaged in other character of work would be endangered. The testimony introduced from one witness shows that he did not hear the warning given, and that of another witness that he did hear the warning. We think, where operations of the kind here involved are being conducted, that it was the duty of the master to see that adequate warning was given so as to attract attention of all employees engaged in putting together the dredging machinery. Where that work was being conducted with the attendant noises calculated to drown the voice of warning, it would become the duty of the master to be more cautious and give such warning as would certainly be heard by the employees operating the dredge boat.
We think therefore it was error to give the peremptory instruction. There is no positive evidence that the deceased heard the warning, or that he deliberately took the risk and ignored the warning. It may have been that he did not hear the warning, as one of the witnesses testified he did not hear it.
Whenever the evidence is in conflict on material points as to the facts, or wherever the facts are such that reasonable men might draw different conclusions from the facts, the case should be submitted to the jury. The rule as to granting peremptory instructions should be, in cases of doubt, don't.
Reversed and remanded. *356
