133 Iowa 89 | Iowa | 1907
-Defendant operates a gypsum mine in Webster county, and at the time in question was mining out a strata which was about seventy feet below the surface of the ground. From the foot of the main shaft, one or more entries extended out into this strata, and from such entries rooms were cut on either side from which the gypsum was taken. For some time prior to the day upon which plaintiff received his injuries, the work was being done by blasting in the use of giant powder or other high explosives; the rock or gypsum blown down being gathered up and removed from the rooms to the surface. The blasting was in charge of two of defendant’s employes and several charges were fired each day. Plaintiff and another employe were engaged in cleaning up the rock and other material broken down by the blast. It was the custom of the men in charge of the blasting, when ready to fire a shot, to cry “ fire ” as a warning to the other employes that they might retire to a place of safety. On the day in question it was known to the plaintiff and his co-employé that a shot was to be fired in the room adjoining the one in which they were working, and, according to plaintiff’s testimony, they were waiting to hear the accustomed signal in order to retire to a place of safety, but, for some reason, the signal was not given by the men in charge of the blasting, and the shot was fired, resulting in a piece of rock striking plaintiff on the head and producing the injuries of which he complains.
The motion to direct a verdict was sustained upon two grounds: (1) That the negligence was not of defendant, but that of a - fellow servant for which defendant was not responsible; and (2) that plaintiff assumed the risk incident
The true test, as we understand it, whereby to determine whether the master is responsible for the act of his servant is to find out whether the person in question is employed to do any of the duties of the master. If this be the test, then
It must at all times be remembered that defendant was using a highly dangerous explosive in its mine, and that, by reason thereof, the place was unsafe unless proper rules were made for the handling thereof, and proper warnings given of the blasts. In this respect, the case differs from many of those cited by appellee’s counsel. The following cases lend support to our conclusions: Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240) ; Van Dusen v. Letel
Upon,the whole record, we are constrained to hold that the trial court was in error in directing a verdict, and that the case should have been submitted to the jury. The judgment must therefore be, and it is, reversed.