153 Ind. 354 | Ind. | 1899
Appellant sued the city of Huntington, and Keefer and Railwood, in the Huntington Circuit Court, to recover damages on account of personal injuries sustained by reason of an explosion of dynamite while appellant was at work upon the construction of a sewer in said city. The defendant-Railwood, it appears, was not served with process, and the action was prosecuted only against the city of Huntington and Keefer. The cause was transferred to the Kosciusko
The complaint is in three paragraphs. The first seeks to recover for the injury sustained hy the plaintiff hy reason of an explosion of dynamite, which occurred on November 9, 1894, while he was in the employ of the defendants as workman upon the sewer. Counsel for appellant, however, seemingly do not claim any right to recover under the evidence on this paragraph. In fact it may be said that there is no evidence in the record which in any manner can he said to sustain a recovery upon the cause of action as alleged in the first paragraph; and therefore it may he considered as eliminated from the case, so far as this appeal is concerned.
The facts, as alleged in the second paragraph of the complaint, may he said to he as follows: The city of Huntington is a municipal corporation organized under the general laws of this State, and, as such city, it undertook to have a sewer constructed, and for that purpose entered into a written contract with the defendant Keefer and his partner, one Railwood, to construct this sewer. In order to construct the sewer it was necessary to excavate a “flinty rock” and, before the city contracted with the contractors, Keefer and Hall-, wood, the common council thereof knew that these contractors would use a powerful explosive material known as dynamite in blasting and excavating this rock, and that it would he necessary that the dynamite should he handled hy careful and competent persons in order to avoid injury to per
It is then averred that on December 2, 1894, the plaintiff and several other employes of said city were ordered by said contractors to shovel dirt and stone from the sewer at a place different from where they had previously worked, and that one of said workmen struck a piece of undischarged dynamite hidden in said rock, and which had been placed theré as a charge, by order of the contractors, to be fired off to loosen the rock, by employes whose duty it was to do the blasting; that for some reason this dynamite was left undischarged after an attempt had been made to discharge it, and no examination was made to see if any dynamite remained undischarged; that a stroke made by said workman with his pick' caused the dynamite to explode with great force, whereby the plaintiff, without any fault or negligence on his part, was seriously injured by means of stone and dirt
The third paragraph of the complaint, after alleging that the city of Huntington is a municipal corporation, etc., states that it entered into a written contract with its codefendants, Keefer and Railwood, to construct a sewer. It then proceeds to set forth substantially the following facts: That under this contract it was provided that these contractors should employ laborers who were residents of the city of Huntington, except experts; that it was also provided therein that the work in the construction of such sewer was to be performed in a workmanlike manner to the satisfaction and acceptance of the city engineer and common council; that said contractors further agreed under the contract to hold and save said city harmless from all damages arising out of the construction of said sewer and sustained by citizens or their property on account of blasting by the use of dynamite, or from leaving pits or openings to said sewer unprotected; that, in order more fully to protect and indemnify itself, in the event it should be compelled to pay any such damages, the city took from said contractors a good and sufficient bond.
In the construction of said sewer it became necessary to excavate a “hard, flinty rock”; which fact was known to the
Plaintiff’s duty, it is averred, was to shovel loose stone and dirt out of the sewer as the work therein progressed, and he had nothing to do with the handling of dynamite or other explosive material, and had no means of knowing when or where the dynamite was used, and was ignorant of the care and methods necessary to be employed in its use in order to avoid injury to persons and property; and it was his duty only to shovel dirt and stone after the same had been loosened by the discharge of such dynamite at such place or places as he might be directed by said contractors; that in blasting said rock, it was the custom of the contractors, Keefer and Railwood, to drill a number of holes into the rock and to charge the same by putting therein pieces of dynamite and exploding it by means of electricity “which was an imperfect machine, and did not discharge all of the dynamite and, when all care and caution was taken, it was not unusual for some of the charges to remain unexploded when loaded in the manner as above stated, as said contractors well knew”; and that plaintiff was ignorant of the fact that unexploded pieces of dynamite remained in the rock which had been blasted, and that this fact could only have been ascertained by some person who was an expert in the discharge of dynamite.
On the 4th day of December, 1894, while plaintiff and other employes of the city of Huntington were, by order of said contractors, engaged at work in shoveling dirt and stone from this sewer, and while one of said employes or workmen was carefully engaged with a pick in removing pieces of rock which had been broken up by blasting, he struck with his pick one of the unexploded charges of dynamite which- was
It is further charged that said dynamite, when struck with the pick, exploded with great force, and hurled stone and dirt against the plaintiff, whereby he was permanently injured, without any fault or negligence on his part. The paragraph then charges that the injury so sustained by the plaintiff was due wholly to the negligence of the defendants in putting him to work in an unsafe place, of the danger of which he had no knowledge, and to the careless and negligent manner in which said work was done by the contractors as above set out; all of which was allowed and suffered to be done by the said city of Huntington; and in not informing plaintiff that the place where he was directed to work was one of danger, and in failing to have an expert to examine and discover, after every blast, if any dynamite remained undischarged, and to mark the place where it remained as one of danger. The pleading closes as follows: “Wherefore he [plaintiff] says that because of said carelessness and negligence of said defendants in placing this plaintiff in such an unsafe place to work, and without any fault or negligence or want of care or caution on his part, he was injured as aforesaid to his damage to the sum of $10,000, etc.”
These two paragraphs of the complaint may be said to be indefinite, and certainly are loosely drafted. If either can be said to advance any particular or definite theory, under the facts as therein alleged, it is that the plaintiff was an employe of the city of Huntington, employed to work for it upon the sewer in question, through the agency of Keefer
The evidence introduced by the plaintiff shows that the city of Huntington, under its charter rights, made a contract with Keefer and Railwood to construct a sewer along certain streets of that city. This contract was reduced to writing and a bond was executed by the contractors for the faithful performance thereof. The formation of the earth through which the improvement was to be made consisted in the main of flinty rock. Above this rock there was a light surface of earth which could be removed with shovels. The sewer was large in its dimensions, being about seven or eight feet in diameter, the excavation being about twenty feet wide and fifteen feet and over in depth. In making the excavations it became necessary to use powerful explosives in order to blast this rock, and dynamite was used for that purpose. It appears that several holes would be drilled in the rock and then charged with dynamite, which was exploded by the means of an electric battery; and the rock and
The law is well settled that a person is not responsible for the acts of an independent contractor, to whom he has let a particular work or job, where he reserves to himself no control over the same except the right to see that it conforms to a particular standard. Under such circumstances, as a general rule, the doctrine of respondeat superior does not apply. Vincennes Water Co. v. White, 124 Ind. 876; Wabash, etc., R. Co. v. Farver, 111 Ind. 195. There are exceptions, however, to this general rule, among which the following may be noted: Pirst, where the work itself is unlawful. (In such a case the person authorizing the work to be done can
The plaintiff, however, does not under his complaint seek to bring his case within any of the exceptions to this general rule.
Counsel for appellant lay some stress upon the fact that the contractors obligated themselves, under clause 32, §3106 R. S. 1881 and Horner 1897, §3541 Burns 1894, to save the city harmless in regard to damages arising out of their negligence. This fact,. however, under the circumstances, lends no support to appellant’s theory of the case. The plaintiff, upon whom rested the burden of establishing all the material issues tendered by his complaint, having failed to introduce any evidence as against the city of Huntington, to support such issues, the. court did not err in directing a verdict in favor of the city. Oleson v. Lake Shore, etc., R. Co., 143 Ind. 405, 32 L. R. A. 149, and cases there cited. We are of the opinion also that the trial court, under the cir
We have heretofore stated, in a general way, what the evidence discloses in regard to the character of the sewer and as to the manner in which the work of blasting the rock was conducted. The evidence further discloses that appellant was hired by Keefer and Railwood; that he worker! along the line of the sewer with other laborers in shoveling out dirt and broken stone which had been loosened by means of blasting; and that these employes also performed other work and sometimes assisted in blasting. Appellant was in the employ of the contractors from some time in June until December 4, 1894, the date of the accident. He generally worked as one of the shoveling gang; and after each blast the men composing this gang would, as the evidence discloses, enter the sewer and shovel out the loose dirt and broken stone. Eor some reason not shown by the evidence, at times, some of the charges -of dynamite, that were placed in the holes drilled in the rock, as previously stated, would remain unexploded in some pieces of rock that were loosened by the blasting, and sometimes the shovelers and others engaged in removing the loose dirt and stone would dig out pieces of undischarged dynamite and throw them out of the sewer. This the plaintiff seems to have seen with his own eyes, and he states in his testimony that on one occasion he picked up in the sewer a piece of live dynamite. That the plaintiff had knowledge of the manner in which the blasting was done and that some of the dynamite charges did not explode, but remained in the lóose rock that was found in the sewer, we think the evidence clearly establishes. The foreman, who seems to have been placed in charge of the work by the contractors, appears to have, from time, to time, warned the men engaged in working upon the sewer to be careful and look out for this unexploded dynamite. The plaintiff, in giving his evidence upon the trial, in response to questions propounded to him upon cross-examination, among
The plaintiff not only stated that he picked up a piece of dynamite in the sewer upon the occasion heretofore mentioned, but he admitted that he frequently saw pieces of dynamité picked up and thrown out of the sewer by the men while at work, but Jie did not remember of picking any of it up himself except upon one occasion. He further testified that at times there would be an undischarged load of dynamite in the loose pieces of rock which some of the men in the shoveling gang would dig out, and that he was present
The plaintiff introduced Henry Keefer, the defendant, as a witness, and he testified that he had been familiar with the character of dynamite, and had used it for several years .in blasting, when engaged in the construction of sewers. He stated that in blasting the rock in the sewer in controversy, the holes were drilled in the rock to the depfh of four feet and the dynamite placed therein and exploded by means of an electric battery, and that this machine was in perfect order and would discharge twenty or thirty holes at one explosion. He further testified that there were no other means of ascertaining whether all of the dynamite at the bottom of these holes had exploded except by excavating and throwing out the loose stone; and the only means for removing pieces of stone broken up with the blasts was by shovels and picks; and the men who used these implements were instructed to be careful and remove all unexploded dynamite; and, when it was known that any of the dynamite had not been discharged, the hole was marked and the men notified of that fact and directed to be careful.
The evidence shows that the occasion upon which plaintiff was injured, was on December 4, 1894; that he and one Henry Bane, along with other employes, were at work in the sewer, which was then nearing completion, engaged in removing the loose stone and dirt with picks and shovels. Bane
One ITenry Wagner was also introduced as a witness for plaintiff, and he testified that he was the foreman in charge of the blasting and shoveling gangs of men wlm were at work upon the sewer. He remembered the explosion on December 4, 1891. This witness had been at the place where the accident occurred about ten minutes before it happened, and had made an examination among the loose stones and dirt to discover if any dynamite reinained there undischarged, and discovered none.
We have carefully read all of the evidence, and it fully discloses, we think, without any conflict, that the alleged dangerous or unsafe character of the place where the plaintiff was at work at the time he was injured by the dynamite, which was exploded when Bane, his fellow servant, struck it with his pick, was equally open to the observation of both the plaintiff and his employers, and that in this respect they were on an equality with each other. The plaintiff had been in the employ of the defendants, Keefer and Railwood, from June until the time of the accident in the following December; he was familiar, it appears, with the process of exploding the dynamite, and knew that all of it, at times, was not discharged, or that occasionally some of the charges remained unexploded in the broken pieces of rock, and that the pieces of stone had to be removed from the trench by himself and his fellow workmen. Conceding that the alleged breach of duty on the part of the defendants caused the plaintiff to be exposed to a peril in the place where he was engaged at work, which resulted in the injury of which he complains, still he appears to have voluntarily remained in their service with knowledge of the danger in question, and, under the circumstances, he must be deemed to have assumed
The evidence indisputably discloses that this unsafe condition of the sewer trench, where plaintiff was at work at the time he sustained the injury, was as obvious and as well known to him as it was to his employers, and therefore defeats his action. Without a showing in his complaint that he was ignorant of the danger in question and.that the defendants had knowledge thereof, he could have had no standing in court. To recover a judgment under the evidence, it was necessary that both of these material facts be established. It is sufficient to say that the evidence does not even tend to support the theory of the complaint, and the plaintiff is not in a position to assert any substantial claim to a verdict thereunder, and the court therefore properly directed the jury to return their verdict for the defendant Keefer.
Judgment affirmed.