Archer Foster Const. Co. v. Vaughn

• Decision Date: 07 May 1906
• Citation: 94 S.W. 717
• Parties: ARCHER FOSTER CONST. CO. v. VAUGHN.
• Court: Arkansas Supreme Court

94 S.W. 717

ARCHER FOSTER CONST. CO. v. VAUGHN.

Supreme Court of Arkansas.

May 7, 1906.

Appeal from Circuit Court, Sebastian County, Ft. Smith District; Styles T. Rowe, Judge.

Action by J. H. Vaughn, as next friend, against the Archer Foster Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ira D. Oglesby, for appellant. Read & McDonough, for appellee.

WOOD, J.

Appellee alleges in his complaint, among other things, the following: "That on the 18th day of February, 1904, while the said Joseph J. Fitzpatrick was in the lawful employ of the defendant as aforesaid, the defendant did negligently, carelessly, and recklessly take the said Joseph J. Fitzpatrick from where he was working in a place of safety and did negligently, carelessly, and recklessly set him to work at a hole which was heavily loaded with dynamite and other strong explosives, and did negligently, carelessly, and recklessly fail and neglect to warn or notify the said Joseph J. Fitzpatrick that said hole was loaded, as aforesaid, and did negligently, carelessly, and recklessly fail and neglect to furnish and provide a safe, competent, and proper man in charge of said dynamite and other strong explosives, and did negligently, carelessly, and recklessly fail and neglect to furnish the said Joseph J. Fitzpatrick with a safe, sufficient, and proper place in which to perform his duties, and did negligently, carelessly, and recklessly fail and neglect to warn or notify the said Joseph J. Fitzpatrick of the dangers of working at said hole, and the dangers and perils incident to said work, by reason whereof and by reason of the negligence, carelessness, and recklessness of the defendant as hereinbefore alleged, and without any fault or want of care on the part of said Joseph J. Fitzpatrick, and without any warning or notice whatever that said hole was loaded as aforesaid, or that there was any danger whatever in working at said hole, the dynamite and other strong explosives in said hole exploded and the said Joseph J. Fitzpatrick was thrown a distance of 15 or 20 feet into the air, and fell with great force and violence to the ground, and was severely and permanently injured, as hereinafter more particularly alleged. That all dangers and perils incident to the employment of the said Joseph J. Fitzpatrick at the time of the accident and injuries as hereinbefore alleged were at all times well known to the defendant, but that the said Joseph J. Fitzpatrick then and there did not know, and he could not by the exercise of ordinary care and prudence on his part know of them, and he had not the means of knowing as to the same." Appellant in its answer denied each allegation of the complaint, and, in addition to these denials, set up a plea of contributory negligence, assumed risk, and that the accident was caused by the negligence of appellee's fellow servant. Upon the issue as thus made, the cause was submitted to the jury.

The appellant was a construction company, and, at the time of the injury to appellee, was engaged in the work of constructing a roadbed for a railroad. The work being done was excavation work, removal of earth and rock, and was carried on by different squads. "Some were engaged in handling steam shovels, others in drilling holes for blasting, and others loading and firing the holes after they were drilled. Appellee was with the crew that was drilling holes. His account of the injury is as follows: "That when at work drilling holes about 30 feet ahead of Lynch he was called by Lynch to bring a drill, and on getting to where Lynch was at work, Lynch told him to put the drill in one of the holes, which he did; and that then he and Lynch took hold of the drill and about the time they had given two or three licks with the drill the explosion occurred; that he knew it was...