McKane v. Marr & Gordon

| Vt. | Aug 22, 1904

Munson, J.

The plaintiff received his injuries while working for the defendants in their granite quarry, under the general direction of the foreman of the quarry, one O’Hearn. Pie was sent by O’Hearn to remove the tamping from some drill-holes which had been fired the night before without lifting the rock; and his evidence tended to show that O’Hearn assured him that the charges had exploded, and gave his reasons for saying SO'. There was powder in one of the holes, which exploded while the plaintiff was at work on the tamping.

The court charged the jury, in substance, that the plaintiff was entitled to recover if O’Hearn told him that the powder had exploded, and he believed and relied upon the statement, and as a careful and prudent man had no reason to believe otherwise. The defendants excepted to the failure of the court to instruct the jury upon the subject of assumed risks.

The plaintiff assumed more than the duty of taking ordinary care for his safety. He assumed the risk of known and obvious dangers ordinarily incident to his employment, including the risk of dangers that could not be detected nor avoided by ordinary care. He could not relieve himself from this burden by relying on the assurances of the foreman in a matter regarding which he knew or ought to have known that the foreman had no superior knowledge. If the evidence afforded a basis for the claim that the plaintiff knew or ought to have known that O’Hearn had no> superior knowledge regarding the situation, and that an unexploded charge might be under the tamping whatever the indications to> the contrary, the defendant's were entitled to a charge upon this subject.

There was evidence tending to show that the plaintiff was an experienced quarryman, accustomed to all kinds of quarry work; that when a blast is unsuccessful many conditions and indications are to be considered in determining whether the explosion covered all the charges; that when the tamping of a hole is not blown out it is impossible for anyone to say with certainty that the charge has exploded; and that the methods used in drawing the tamping are adopted in recognition of this uncertainty. This was evidence tending to show the existence of a known risk; ordinarily incident to the work, which the plaintiff assumed in undertaking it; and entitled the defendants to a charge, upon the doctrine of assumed risks. As regards this doctrine, the question was not whether the plaintiff as a prudent man had reason to-believe that the powder was there, but whether the conditions were such that the risk involved in the chance of its being there rested upon him.

Judgment reversed, and cause remanded.-