54 Ind. App. 301 | Ind. | 1913
Appellee as administratrix of her deceased husband, Wesley Minor, recovered a judgment for damages occasioned by his death, which was caused by an explosion of a blast which occurred in a quarry operated by appellant company by whom Wesley Minor was at the time employed.
Three errors are relied upon for a reversal of the judgment. The first is predicated upon the alleged insufficiency of the complaint; the second, upon appellant’s exceptions to the conclusions of law pronounced by the court upon the special finding of facts; and third, upon the overruling of appellant’s motion for a new trial. Practically the same question is presented by these several assignments. Appellant asserts that the complaint is insufficient because it does not state facts showing affirmatively that the danger which caused the injury was not one of the risks assumed by the servant. For the same reason it is claimed that the special finding of the court is insufficient to sustain a judgment in favor of appellee and that the court therefore erred in its conclusions of law. It is also contended on behalf of appellant that the trial court erred in overruling its motion for a new trial for the reason that the evidence most favorable to appellee affirmatively shows that he assumed the risk of
The facts as disclosed by the complaint and the evidence are practically without dispute. Appellant was a corporation engaged in the manufacture of cement and operated a quarry in connection with its cement works. Richard Cummins was the general superintendent of the cement works and quarry, and his duties were to manage, direct and control all of the business affairs of the company both at the mill and quarry, and to direct the work of the men there employed. Appellee’s decedent was at the time of his death employed in the quarry and it was a part of his work to blast down rock by means of shots or cartridges placed in the holes drilled for that purpose. It is averred in the complaint that he was required and bound by his contract to obey Cummins and conform to his directions in the performance of his work. The quarry in which the work was being performed was located under ground and was reached by means of a tunnel about seventy feet in length. When two or more shots were prepared it was the custom of the employes of the quarry to ignite the fuses and then retire to the outside of the quarry so as to be beyond the reach of danger. The fuses were cut of different lengths so that ordinarily the shots occurred separately and could be counted, and it was customary to count the reports, which could be heard outside of the mine, for the purpose of determining whether all of the blasts set had exploded. In some instances the fuse by reason of being wet or for some other reason would burn very slowly and the cartridge with which it was connected would not explode until a considerable length of time after the others, sometimes as long as fifteen minutes. In other instances the lighted fuse would fail entirely to communicate fire to the cartridge and it would fail to explode. In view of these facts it was regarded as dangerous for anyone to enter the quarry within fifteen minutes after an explosion except in cases where it had been
The specific objection urged against the complaint is that it fails to state facts sufficient to show that Minor did not assume the risk of a known danger. It is asserted that the averment, that he did not know that one of the cartridges had not exploded is not equivalent to an averment that he did not know the danger of entering the quarry under the conditions stated in the complaint; and that such an averment, when construed most strongly against the pleader, amounts only to a statement that he was doubtful upon the question. It is further claimed that the negligence alleged
Judgment affirmed.
Note.—Reported in 100 N. E. 767. See, also, under (1) 26 Cyc. 1397; (2) 26 Cyc. 1202; (3) 26 Cyc. 1213, 1221; (6) 26 Cyc. 1394;