102 P. 570 | Mont. | 1909
delivered the opinion of the court.
■ The motion for new trial was made on several of the statutory grounds, including insufficiency of the evidence to justify the verdict. The court sustained it by a general order, but attached to the order a memorandum stating, as its reason for granting the motion, that the evidence is insufficient, in that it “leaves it speculative and conjectural whether the explosion by which plaintiff was injured was due to a missed hole, for which defendants might be liable, or due to a piece of dynamite accidentally in the loose earth, and for which defendants are not liable.” Contention is made by counsel for appellant that this court may consider this reason alone; and, if the court was in error in granting the motion, the order must be reversed, without regard to whether the evidence is insufficient in other particulars, or whether there were errors of law requiring the granting of a new trial. In Menard v. Montana Central By. Co., 22 Mont. 340, 56 Pac. 592, the same contention was overruled by this court. The rule declared therein has been uniformly observed by this court. (State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Gillies v. Clarke Fork Coal Min. Co., 32 Mont. 320, 80 Pac. 370; Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455; Case v. Kramer, 34 Mont. 142, 85 Pac. 878; Wright v. Mathews, 28 Mont. 442, 72 Pae. 820;
Under the allegations of his complaint, and the issues made thereon by the defendants’ answers, it was incumbent upon plaintiff, in order to recover against the defendants Orman & Crook, to show that he was in their employ, and that the injury suffered by him was the result of a violation of their legal duty to use ordinary care to furnish him a reasonably safe place in which to work, or, what is the same thing, of their sending him to work in the frozen ground without having first exercised ordinary care to ascertain that there was no missed hole therein into which he might drive his pick and cause an explosion; for the negligence alleged is that these defendants knew of the missed hole, or by the use of ordinary care should have known of it, and with such knowledge put plaintiff to work where, in his ignorance of its existence, he was likely to pick into it and cause an explosion, to his injury. The theory upon which Moran is joined with them as defendant is that, he being in their employ, and Rumsey, his boss, having under his immediate direction and control the other employees, Moran is liable, together with his codlefendants, for any negligence toward the employees of which Rumsey was guilty. As to whether he, being the intermediate agent only, and not being charged personally with any omission of duty or primary negligence, is liable under the rule of respondeat supeñor; we express no opinion, since no reference is made to this feature of the case by counsel. In no event can he be held liable with Orman & Crook, except upon proof of the same, facts necessary to fasten liability upon them. If he was not in their employ, he was solely responsible for the acts and omissions of Rumsey, and is liable for any injury caused by him to the plaintiff by reason of the negligence alleged.
As to how the accident occurred, and the cause of it, and the particulars showing by whom he was employed, the plaintiff testified as follows: "As to what Rumsey said when he put me to work there,' he said the day before the holes had been drilled and blasted, loaded for powder or dynamite, and that it had been shot off. He expected that the ground was all broken up, ready for us to pick it up and shovel it out. Guy Melton was the man who was working with me. Before I went to work there, I asked Paul Rumsey if it was safe to go to work there, and Melton asked him if all the holes had been shot off there, and Rumsey said they had. Rumsey said they told him that six sticks had been put in the holes, and he said they were all exploded. Myself and the man working with me then proceeded to work, and we worked at that place seven or eight hours before anything happened ; and we worked the entire forenoon without any accident occurring from the time we started, and in the afternoonT picked out a missed hole.. This happened about 5 o’clock in the afternoon, and I was still working on that foundation, and we had removed between two and three feet, nearly three feet, perhaps a little more, from that particular place, and I was picking and digging it up, and picked into a missed hole. A missed hole is a hole that has not been shot off, and that is loaded with explosives. In the course of my employment about railroad grading camps I had not handled dynamite to any great extent, but I had handled some of it, and I know that it was dangerous. I had seen a little powder used in and around railroad camps, and I knew that powdér was being used in this place on this culvert. This culvert was twenty-five feet long and eight feet wide; this hole that I was digging in, something of that size, and I had dug
This evidence reveals the fact that the plaintiff did not know' whether the explosion was caused, as he alleges, by his picking into a missed hole, or into a piece of dynamite which had failed to explode, and had thus been left in the loose earth, or had gotten into it by accident, or into a cap which had been dropped by the workmen on the day before. While he repeats the statement that he picked into a missed hole, his subsequent statement indicates that this amounts to a mere inference by him that there was a missed hole from the fact that there was an explosion, produced by a stroke of Melton’s shovel, or his own pick, into some explosive after they had removed the dirt to a depth of three or four feet. There is no attending circumstance testified to tending to show that one of the charges placed the day before did not in fact explode, and to exclude an inference that the explosive, whatever it was, got into the loose earth by accident, oversight, or design, for which no one of the defendants was responsible. If it was a cap or a piece of powder dropped by one of the workmen, or a portion of a stick which had failed to explode, but was blown off and mixed with the loose earth, the accident was an unforeseen misfortune, for which no one can be held responsible, unless it was the legal duty of defendants to make inspection after each explosion to ascertain that all the powder placed in the holes had been consumed, and none of it blown out and mixed with the debris. Even so, recovery is sought here for the lapse of duty in failing to ascertain that there was a missed hole. It may be conceded 'that where the testimony introduced by the plaintiff, though mainly circumstantial, tends directly to support the plaintiff’s ease, and to exclude any inference that some other cause produced the injury, and there is no rebutting evidence, it would be an abuse of discretion to grant a new trial, yet, if the evidence does not meet this requirement, it .fails to make out a prima facie case, and it becomes the duty of the court to grant a new trial, just as it should have sustained the motion for nonsuit in the first instance.
The motion for nonsuit should have been granted, for the reason that the evidence furnishes no substantial basis for the conclusion that the defendants were guilty of negligence. For the same reason a new trial was properly granted. It should have been granted also for the reason that the evidence wholly fails to sustain the allegation that the plaintiff was in the employ of Orman & Crook. So far as the statements of plaintiff tend to show any substantial fact in this connection, they lead to the conclusion that he was in the employ of Moran, who was an independent contractor, and not of Orman & Crook. If Moran was an independent contractor, and the plaintiff was in his em
The order is affirmed.
Affirmed.