Hardy v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 26 October 1910
• Parties: C. E. HARDY v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

127 N.W. 1093

149 Iowa 41

C. E. HARDY v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

October 26, 1910

Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.

ACTION for damages resulted in a judgment against defendant, from which it appeals.--Affirmed on conditions.

Affirmed on condition.

Carroll Wright and J. L. Parrish, for appellant.

Wade Dutcher & Davis, for appellee.

OPINION

LADD, J.

At the first trial the only issue submitted to the jury was whether the defendant was negligent in failing to instruct and warn plaintiff respecting the dangers incident to the work in which he was employed. On appeal the evidence was held insufficient to establish negligence as alleged (139 Iowa 314), and upon remand an amendment to the petition was filed, in which it was alleged that defendant was negligent in that its vice principal ordered plaintiff by an imperative command to pour powder into a hole and to go into a place of danger, knowing that the hole had just been sprung, and having knowledge of the danger that sparks or heated rock might be in said hold, and as to which the plaintiff claimed he had no knowledge. In support of this charge of negligence and as bearing on the issue of contributory negligence, the evidence tended to show that plaintiff entered the employment of defendant in April, 1901, with a gang of men operating a steam shovel. Up to July 4th of that year he worked in the pit, the duty of himself and four others being to bring forward and lay ties and rails in front of the steam shovel when it had cleared sufficient space, so that it could move forward in performing its work. He quit on the last-named day, and did not resume his work until about October 1st. From then on his work was in the pit or in drilling holes and assisting in loading them with dynamite to be exploded so as to loosen the earth in embankments or when frozen, the more readily to be shoveled on board of cars. About May 1, 1902, he was employed as "powder monkey;" his duties being to handle the dynamite and powder. It appears that prior to this time powder had not been used, but thereafter some forty or fifty holes, two or two and one-half inches in diameter and fifteen to thirty feet deep, were drilled from sixteen to twenty feet back from the edge of the bank being removed. Into each of these he dropped four or five sticks of dynamite, the last with a fuse about two feet long lighted. The resulting explosion enlarged the hole at the bottom, and usually this was repeated with seven or eight sticks of dynamite. This was called "springing" the hole. Afterwards, but not until the place was reached by the steam shovel, the hole was loaded by pouring into it one hundred and fifty to two hundred pounds of powder with several hundred pounds of dynamite, and this was discharged by the use of an electric battery.

On the evening of July 12th James Nesmith, who was in charge of the work for defendant, went to Davenport to procure powder, and a few minutes prior to his return on the following morning a hole the drilling of which had just been completed had been sprung. As the train came in, plaintiff went down to the car some sixty or seventy feet distant. The work could not proceed until the hole was shot, and Nesmith immediately inquired if it was ready to shoot. Plaintiff responded that he had just sprung it. Nesmith said: "It don't make a damn bit of difference. Go on (or hurry up) and load it. We have got to have (or I want to get) something done. We are all late." Plaintiff took a can up to the hole, opened it, and laid it so that the powder would run in. The opening in the can was about an inch in diameter, and after a moment, observing the powder still running, he exhibited some of it to Nesmith, with the remark that it was finer than that which they had been using. He then put the powder back, and shortly afterwards reached down and lifted the can on end so all the powder would run out, when there was an explosion, seriously injuring him. The plaintiff was then about twenty-two years of age, had never noticed fire or cinders in the holes, but had observed dust or smoke arise therefrom, after explosions. He had never made a study of the subject, nor had he been informed as to the conditions probable after springing. Previous to this no hole had been loaded within an hour after being sprung, and probably none had been sprung and loaded on the same day. For a more detailed statement of the record see opinion on the former appeal (139 Iowa 314). The second trial resulted in a judgment for plaintiff, and it is said by appellant that a verdict should have been directed for defendant for that (1) James Nesmith who gave the order in doing so did not act as vice principal of defendant; and (2) it conclusively appeared that plaintiff by his own negligence contributed to his injuries, and that there was error in not submitting the issue as to whether plaintiff assumed the risk.

I. No question is raised but that Nesmith in giving the order was negligent. Nesmith knew that the hole had just been sprung, and as representative of the defendant was charged with knowledge of the dangers, latent as well as patent, ordinarily accompanying the business which was being done. Without investigation, he peremptorily directed plaintiff to load the hole immediately. As the place was then one of great peril, there can be no doubt but that the act of Nesmith was not only negligent, but one for which the defendant was responsible. He was superintendent of the work in excavating and removing the embankment. He hired and discharged employees engaged thereat, and, though he sometimes operated the crane to which the shovel was attached and at others acted as engineer, he at all times exercised entire control. Manifestly he was vice principal with reference to the work being done, and, as the order in effect assigned plaintiff a dangerous place at which to work, it was material in character, and not merely that of a fellow servant. Of course, it was a part of plaintiff's duty to load the holes, but not at a time when this was likely to cause an explosion. The effect of the order was to require him to work in a situation exposed to a peril not theretofore encountered, nor in so far as appears contemplated. Not every direction with reference to the progress of the work even when given by a superior servant is to be regarded as coming from the master, as appears from the authorities relied on by appellant. Hathaway v. Railway, 92 Iowa 337; McGinley v. Levering, 152 Pa. 366 (25 A. 824); Dill v. Marmon, 164 Ind. 507 (73 N.E. 67, 69 L. R. A. 163). But where the effect of the peremptory order of a person in complete control, as was Nesmith, is to place the employee in a place of great peril in which to perform his duties, the decisions are conclusive that the principal will be held responsible for the act as nondelegable. McGuire v. Waterloo & C. F. Mill Co., 137 Iowa 447, 113 N.W. 850; Meier v. Way, Johnson, Lee & Co., 136 Iowa 302, 111 N.W. 420; Beresford v. Am. Coal Co., 124 Iowa 34, 98 N.W. 902.

II. Even though plaintiff had loaded forty or fifty holes previous to the last accident, he had done so at times when no question as to the existence of live sparks or heat therein could well have arisen. He may have known that the explosion of sticks of dynamite at the bottom caused fire and heat, but there is nothing in the record justifying the conclusion that he was aware of how soon thereafter it would be safe to load with powder. In drilling water was poured in the holes, and therefore no attempt to load had ever been made within an hour after springing, and probably not until the following day. How, then, can it be said that he was at fault in obeying the peremptory order of Nesmith? He was not bound to set up his judgment against that of the superintendent in charge. If he did not know whether it was then dangerous to load the hole, he might assume, in the absence of a showing to the contrary, that Nesmith did know and act accordingly. As well stated in Illinois Steel Co. v. Schymanowski, 162 Ill. 447 (44 N.E. 876):

When the master orders...