166 N.W. 147 | S.D. | 1918
This action was brought to recover damages alleged to have been suffered by plaintiff by reason of an injury received as a result of defendant’s1 negligence. Verdict and judgment were for plaintiff. From such judgment and an order denying a new trial, this appeal was taken.
Appellant assigns the insufficiency o'f the evidence to support the verdict. Respondent was engaged as a miner in the sinking of a shaft on appellant’s property. While drilling a hole his drill came in contact with and exploded a heavy charge of dynamite that was in whkt is known as a “miss-fire”hole. The miners would drill a number of holes iii the floor of the shaft, would then charge them with dynamite, and, by means of fuses, attempt to fire all the charges at one time. When it happened that, for any cause, one of such charges failed to explode, the drill hole containing such charge was spoken of as a “miss-fire” hole. It was from the explosion of the charge in a miss-fire hole that respondent was injured. This miss-fire hole resulted from «the failure of a prior shift of miners to explode all the charges of dynamite by it placed in drill holes. Respondent alleged that appellant had been negligent in several particulars: In not giving him notice of the existence of the miss-fire hole, in not providing a reasonably safe place in which to work, and in not furnishing him and his fellow workmen with safe and proper tools and appliances, including powder, caps, fuse, ignition aparatas, etc. None of such allegations had. any support in the evidence save the allegation that appellant had failed to provide a reasonably safe place for respondent to work.
The evidence bearing upon the question of contributary negligence was conflicting, and it would -serve no useful purpose to review -it.
Appellant assigns error in the instructions given. There was certainly much conflict in the several instructions given, especially those relating to a safe place to work, and those relating to the matter of superior officer. Such conflict will undoubtedly be avoided upon a new trial and the instructions given be in harmony with our views as above announced.
The judgment appealed from is reversed.