Bane v. Keefer

• Decision Date: 16 May 1899
• Docket Number: 18,392
• Citation: 53 N.E. 834,152 Ind. 544
• Parties: Bane v. Keefer et al
• Court: Indiana Supreme Court

53 N.E. 834

152 Ind. 544

Bane v. Keefer et al

No. 18,392

Supreme Court of Indiana

May 16, 1899

From the Wabash Circuit Court.

Affirmed.

J. C Branyan, J. S. Branyan, L. M. Ninde, W. M. Ninde, Wm. A Branyan, B. F. Ibach and Alvah Taylor, for appellant.

Walter Olds, C. F. Criffin, J. F. France, Z. T. Dungan, J. B. Kenner and U. S. Lesh, for appellees.

OPINION

Jordan, J.

Action by appellant in the Huntington Circuit Court against appellees, Henry Keefer and the city of Huntington, to recover damages for personal injuries sustained by reason of an explosion of dynamite in the construction of a sewer in said city. The venue was changed to the Wabash Circuit Court wherein a trial resulted in the court, upon the evidence, directing the jury to return a verdict in favor of the city of Huntington, and in giving judgment in favor of the defendant Keefer on the special verdict returned by the jury in answer to interrogatories submitted under the statute of 1895.

The second additional paragraph of the complaint, which is the only pleading in the nature of a complaint embraced in the record, may be said to be repetitious and diffusive in its averments in respect to the charge of negligence. It discloses, however, among other things, that the defendant, Keefer and one Hallwood were partners, doing business as contractors under the firm name of Keefer & Hallwood. Prior to December 4, 1894, this firm entered into a contract with the city of Huntington for the construction of a sewer. It is averred that in excavating for the sewer it was necessary to remove, along the line thereof, "ledges of hard and flinty stone varying in depth from one to ten feet." To remove this rock it was necessary to use powerful explosives, in the use of which great care was required; and the substance used for such purpose was required to be handled by persons who were experts in the use thereof, so as to protect the workmen engaged in the construction of the sewer. In the blasting of these ledges it is averred that numerous holes were drilled in the stone, and loaded with dynamite, which was discharged by means of electricity. It is then averred "that the only safe way to discharge these holes was by discharging but one at a time, or at least not more than two, so that, after the electrical shock, it was easily and readily seen if the same were all discharged, as the defendants well knew; but said contractors, or defendants aforesaid, being inexperienced themselves, and having no experts to attend to and use the dynamite, loaded numerous holes at a time, and connected these holes so loaded by means of an electrical appliance, and in this manner attempted to discharge these numerous holes at one and the same time by means of an electrical battery; that said means of discharging the holes were imperfect, and defective, and unreliable, in this: that it was not sure and certain to discharge each and every one of the numerous loaded holes, and, owing to the defect in not discharging all of them, there remained, after the application of the electricity, in some holes undischarged and live dynamite,--all of which was known to the defendants, but was not known to the plaintiff." It is alleged that "the plaintiff was not an expert in the use of dynamite, and had no knowledge that said work of blasting was done in such a negligent manner and with such imperfect and defective appliances; nor was he informed that more than one or two holes were attempted to be discharged at one time; neither did he know that said contractors were inexperienced men in such work, nor that they had employed no expert," etc. Prior to December 4, 1894, it is averred that plaintiff was employed by the defendant Keefer to work for him in the construction of this sewer to pick and shovel loose stones and dirt, and on said day he was directed by the defendant to loosen stone and dirt in the sewer at a place where said defendant had attempted to discharge a number of holes at one blast by means of said defective appliances; that all of said holes had not been discharged, and live dynamite was left concealed in some of the holes, which, however, was unknown to plaintiff, that on December 4, 1894, while engaged in said work in such unsafe and dangerous place, without having been warned of such hidden danger, which could have been known by defendants, and while in the discharge of his duty, using due care and caution, and without any fault on his part, while so working he struck with his pick an undischarged load of dynamite in the bottom of the sewer, placed there for the purpose aforesaid, and which defendant had attempted to discharge in the careless manner aforesaid. In striking said dynamite with his pick it exploded with great force, and seriously injured plaintiff, etc.

The theory upon which the complaint proceeds, as outlined by its material facts, is to the effect that the negligence upon which the plaintiff bases his cause of action is attributable to the fact that more than two of the holes which had been drilled in the stone for the purpose of blasting were loaded and attempted to be discharged at the same time by the means of a defective electric appliance or battery; that, by reason of this unexploded dynamite being left concealed in some of these holes, the place at which plaintiff was at work at the time of the accident was rendered unsafe, which fact was unknown to him; and that said danger was incurred by him when at work in the line of his duty, and that he was injured thereby as alleged.

Considering the state of the record as it appears in this appeal, and the assignment of errors thereon, the only question presented for our decision is, do the legitimate facts embraced in the special verdict entitle appellant to a judgment under his complaint?

As heretofore stated, the trial court upon the evidence instructed the jury to return a general verdict in favor of the defendant, the city of Huntington. With this instruction the jury complied. No motion for a new trial is set out in the record; neither is the evidence before us; and the only attempt to present...