79 Vt. 13 | Vt. | 1906
The evidence of the plaintiff tended to show that the defendants were engaged as partners in quarrying granite and that the plaintiff was in their employ as a quarry-man to work on their quarry as a plug driller, and had been employed there for a long time prior to the accident in which he received his injuries; that one O’Hearn had general charge of the work on the quarry, and at the time of the accident the plaintiff was under the general direction of O’Hearn as foreman. It was conceded that O’Hearn was vice-principal. The plaintiff’s evidence further tended to show that on the afternoon before the accident two Lewis holes drilled in the quarry had been loaded with black powder and an attempt made to fire them, but as the result of such attempt, an explosion took place and a crack extended between the holes, yet the tamping was not blown out; that on the morning of the accident O’Hearn told the plaintiff, then engaged in plug drilling, to take a drill and clean out the two Lewis holes, saying* they were fired the night before but did not blow out the tamping. Whereupon the plaintiff asked him if he were sure the holes “went off,” to which O’Hearn replied, “yes, go up and get a drill and go up and clean out them- holes”; that the plaintiff pursuant to such orders and without objection on his part then took a drill and went to do as directed, but before he commenced he asked other employees on the quarry, who were his fellow servants, if the holes had exploded the night before, and they replied that they had; that after he had worked some time drilling out the tamping by “churning” with the drill, he called to a fellow servant and quarryman working nearby, to give him, a few blows, which the fellow servant did, striking his hammer on the drill
Defendants excepted to the admission of evidence relating to the powder-man and his duties, on the grounds ( x ) that they are not charged with the negligence of the powder-man; (2) that the powder-man was a fellow servant, and his negligence was not imputable to the defendants; and (3) that there is nothing in the declaration charging negligence on the part of defendants as far as the powder-man was concerned. Counsel for plaintiff stated that the evidence was on the question of defendants’ superior knowledge.
The evidence thus admitted tended to show that one Moore was the powder-man at the time of the accident; that it was his duty to- take charge of the powder and of dynamite caps, and to load and fire holes; that if any of the holes had misfired or had not blown out the tamping it was his duty to clean them out and fire them over again; that he would know just how the holes were loaded and for that reason no one else could tell so well as he whether any particular hole had misfired; that if the powder-man does not hear the report, he generally looks for the result, and if no result is to be seen, he makes up his mind that the powder did not go off; that the man who loads a hole knows how he tamps it, how much air chamber is left, whether the tamping is in loose or hard, and if it was tamped loose and in digging it out he finds the tamping hard, it is an indication that the powder went off and pressed against the tamping; that the matter of finding this out generally lies between the foreman and the powder-man; that a person who had nothing to do with charging the hole could not tell from the character of the tamping whether the hole had fired or not; that a quarryman has nothing to do with the handling of pow
It was the duty of O’Hearn, as vice-principal, to make careful inspection and investigation including inquiry regarding the condition of the hole and the tamping therein, to ascertain as far as he could in the exercise of requisite care, whether the hole had fired, before directing the plaintiff thus to clean it out. The defendants are chargeable with whatever knowledge O’Hearn had or ought to have had concerning the situation. The powder-man who loaded the hole was then on the quarry, at O’Hearn’s command and subject to his inquiry. Whether O’Hearn had or ought to have had knowledge superior to that possessed by the plaintiff was a material question upon which the evidence, to which objection was made, had a bearing. Irrespective therefore of the questions raised by the exception touching the declaration, the evidence was properly received. LaFlam v. Missisquoi Pulp Co., 74 Vt. 125, 52 Atl. 526.
At fhe close of the evidence the defendants moved for a verdict on the grounds that all the evidence in the case shows (1) that the defendants were not guilty of negligence; (2) that the negligence of the plaintiff contributed to the accident; and (3) that the accident resulted from a risk which the plaintiff
It is urged that upon the uncontradicted evidence the proximate cause of the accident must have been the blow on the drill given by the fellow servant, and that this result was the immediate and natural consequence of the act of the plaintiff himself.
The defendants’, evidence tended to show that the plaintiff was employed to work on the quarry, to do anything there to be done; that he was an old and experienced quarryman and had had experience in loading and unloading holes which had been charged like the one in question; that the plaintiff knew there was no way of ascertaining from external appearances whether a hole charged had been fired or not when the tamping had not been blown out, as in this case; that the plaintiff admitted that he knew that the use of a hammer in cleaning out such holes increased the risk when any unexploded powder .remained therein; and that the defendants and their foreman did not sanction the use of a hammer in removing tamping from holes of this character, and never knowingly allowed one to be used.
The plaintiff’s instructions were to clean out the holes with a drill. No particular method of using the drill was specified. After “churning,” that is, striking with the drill, for some' time he called the fellow servant to give a few blows with a hammer and while being thus assisted the accident occurred. It is true that the hammer was used at the plaintiff’s request, but the testimony given by O’Hearn and by some other experienced quarrymen was to the effect that the danger was not increased thereby. O’Hearn also testified to several ways by which holes are unloaded where the tamp
The motion was properly overruled. No other points are discussed in defendants’ brief.
Judgment is affirmed.