Conroy's Adm'x v. Nelson

• Decision Date: 07 October 1912
• Citation: 86 Vt. 175,84 A. 737
• Parties: CONROY'S ADM'X v. NELSON et al.
• Court: Vermont Supreme Court

84 A. 737

86 Vt. 175

CONROY'S ADM'X

v. NELSON et al.

Supreme Court of Vermont. Rutland.

Oct. 7, 1912.

Exceptions from Rutland County Court; William H. Taylor, Judge.

Action by John Conroy's administratrix against Herman B. Nelson and others. Verdict for defendants, and plaintiff brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSOX. WATSON, HASELTON, and POWERS, JJ.

J. E. Sennett, of Poultney, and P. M. Meldon and M. C. Webber, both of Rutland, for plaintiff.

T. W. Moloney, of Rutland, for defendants.

WATSON, J. At the close of the plaintiff's opening case, a verdict was ordered in favor of the defendants on the ground that no breach of any legal duty owing by the defendants to the intestate was shown by the evidence. Was this error is the sole question.

The controlling facts fairly and reasonably within the tendency of the evidence may be stated as follows: The defendants, operators of a quarry, were engaged in quarrying and removing slate rock from the pit of their quarry, and manufacturing the same into slate products. The butt of the quarry is on the east, and is a more or less perpendicular face of rock formed by cutting down into the slate veins from above, and removing the slate rock in a westerly direction therefrom. The sides of the quarry are at the north and the south. The pit was of varying depths, and the different elevations in the floor or bottom of the quarry are described as benches or shelves. The slate lies in veins, and is separated into more or less detached pieces by joints or seams. Each of these pieces of slate is known and spoken of as a "head of slate," and is separated from another head back of it by a butt joint, also from another head on either side (maybe) by a joint. Slate may be attached to rock on one or more sides so there is no joint. The heads of slate are often imbedded in streaks of poor rock, varying in width, running through good slate rock, called posts or pillars which form a support to the heads of slate. The defendants' quarry is jointy. In quarrying one object is to get the heads of slate out free from the joints as nearly whole as possible. The pit of the quarry is divided into sections, known as inclines, and numbered 1, 2, 3, and 4, respectively, in their order from the south to the north. The defendants had a general foreman in charge of the work of quarrying and manufacturing slate at their quarry, who had charge and direction of the operations in the quarry pit and gave orders to the men in regard to the work of quarrying, and in each incline they had a gang of three men, consisting of a rockman and two helpers under him, engaged in quarrying slate rock. The intestate was the rockman of incline No. 3. and on the day of the accident he had three helpers, one of whom was there by order of the foreman to help the intestate in the work of blasting then to be done. The intestate's work as rockman was to get out heads of slate, break them into blocks of suitable size, and to send those fit for manufacturing purposes out of the quarry. At incline No. 3, there was a head of slate projecting out from the butt of the quarry with a supporting pillar of rock underneath it. A day or two before the accident the foreman caused seven holes to be drilled in that incline The intestate had nothing to do with the drilling of them, except that he helped to set up the drill. Five of these holes were underneath this projecting head of slate, three of which, eight feet deep, were in the bench of the incline close to the butt of the quarry and ran up and down; two, six feet deep, were in the roof, about ten feet lower down than the projecting head, but opening up toward it; and the other two were lower down in the pit. The purpose and effect of the first five holes here mentioned were to blast out the rock underneath this head of slate, so the latter could be freed in the process of quarrying it. One witness of long experience in this kind of work said the general effect of blasting two holes underneath such a head of rock is to weaken the top so it will have to fall sooner or later.

In the forenoon of the day of the accident the foreman directed the intestate to fire the two holes lowest down in the pit, at the same time ordering the man who drilled the holes, he being an experienced quarryman, to help the intestate in so doing. After these holes were fired, the foreman went down into the quarry to see the blast, and then told the intestate to fire the other five holes, which he did; all five going off together. On giving the last order and before the blast, the foreman went out of the quarry, and was not in it again before the accident. In cleaning up the rock thus blasted out, the intestate found a crack some two inches wide about a foot below the roof holes, extending down to the bench. Later, when out of the quarry for dinner, he told the foreman about it, and was told by the latter that, if there was a place for powder, he better put it in. On returning to the pit, the intestate put powder in the crack and fired it. Then he noticed a small stone weighing about 50 pounds, over where he and his helper were at work, and right under the projecting head of slate. Saying it might fall and kill some one, the intestate, using a crowbar lengthened out by a piece of iron pipe for that purpose, punched the small stone, and around it, until it fell, followed within a few seconds by the big overhanging rock's tipping out and coming down upon him, producing fatal injuries. The big rock was in length, north and south, from 20 to 25 feet, and in weight from 12 to 15 tons. Before tipping, it had an overhang of 10 feet. The intestate's helper had not before seen anything that was loosened there except the small stone, and, for the purpose of the question before us, it may reasonably be inferred from the evidence that the intestate had not. The latter had had 20 or more years of experience working in slate quarries in that vicinity, 5 or 6 of which years were in this same quarry, and for the last year or year and a half he was, as at the time of his death, a rockman there, and as such loaded the holes and did the blasting in No. 3 incline. On the day of his injury he received no instructions from the foreman to look out for the overhanging rock, nor was anything said to him by...