151 Iowa 690 | Iowa | 1911
The deceased, with other employees of the defendant, was engaged in removing clay from defendant’s clay pits, under the direction of one Frances as foreman. Frances had charge of the work of loosening the clay by blasting with charges of dynamite and on him rested the duty of giving warning to the employees when a blast was to be fired so that they might seek places of safety. The evidence tended to show that, just before the firing, of the blast which resulted in the death of the deceased, Frances gave the usual warning, and the employees, including deceased, retreated to the usual distance and to a distance which would have rendered them safe if the usual blast had been fired, but that Frances had planted for this blast an unusual quantity of dynamite, nine sticks in all, and that the firing of this blast caused an unusual re-
It may well be conceded that Frances and deceased were coemployees and fellow servants in the same work of removing clay from the pits, and that for the negligence of Frances as such coemployee causing injury to the deceased defendant was not liable if it was not negligent in establishing the method in accordance with which the work was to be done or in the employment of Frances as a competent person to discharge the duties intrusted to him. But we have held in a recent case that, when the prosecution of the work in which an employee is engaged involves the use of highly dangerous explosives, the duty of giving timely and adequate warning is a magisterial duty which can not be delegated so as to relieve the master from responsibility as to the giving of such warning in a particular case or under the particular circumstances attending the facts. Hendrickson v. United States Gypsum Co., 133 Iowa, 89. We have since said that this is a border line case, and one presenting unusual difficulties, but that it can not be regarded as overturning any of the well established rules of the liability of the master to the servant, although it involved an application of these rules in a somewhat exceptional way. Galloway v. Turner Imp. Co., 148 Iowa, 93. We have no disposition to recede from the conclusion announced in the HendHckson case under circumstances involving the very question there decided. This case involves that, exact question. The defendant was employing deceased in the business of removing clay and shale from a pit in a method which necessitated the use of high explosives in a manner calculated to imperil the lives of its employees so engaged. It had invested Frances
The judgment of the trial court is therefore affirmed.