Henderson v. Williams

• Decision Date: 13 March 1891
• Citation: 23 A. 365,66 N.H. 405
• Parties: HENDERSON v. WILLIAMS.
• Court: New Hampshire Supreme Court

23 A. 365

66 N.H. 405

HENDERSON

v. WILLIAMS.

Supreme Court of New Hampshire. Hillsborough.

March 13, 1891.

Exceptions from Hillsborough county; before Justice Blodgett.

Action by Daniel R. Henderson against Charles Williams for injuries received while working in defendant's quarry.Verdict of $10,000 for plaintiff.Defendant excepts.Exceptions sustained.

While the plaintiff, as the defendant's servant, was engaged in removing an unexploded charge of powder by him placed in a hole previously drilled by him and others, the charge exploded, whereby he was injured.The plaintiff claimed that the fuse used by him to ignite the charge was, without his knowledge, defective in that it had been wet; that by order of the defendant's superintendent, who had charge of the blasting materials, and who knew of its condition, the fuse was placed in the defendant's powder-house, where the plaintiff was instructed and accustomed to get materials for blasting; that it was thence taken by the plaintiff, and used in loading the hole; and that by reason of its having been wet be was blown up, and injured.He further claimed that wet fuse may be good in parts, and that to drill out a charge by the side of fuse that may at some point be filled with undamaged powder is more hazardous than to drill down by a burned-out fuse; that the plaintiff, not knowing that the fuse had failed to burn throughout its length, was led by this want of knowledge to presume that there was no danger of an explosion unless sparks from his tools came in direct contact with the charge, and that so he was exposed to unusual and unexpected danger.

Geo. B. French and Chas. H. Burns, for plaintiff.

Sulloway & Topliff, J. F. Briggs, and O. E. Branch, for defendant.

CARPENTER, J.A servant assumes the perils incident to his service of which he is informed, or which ordinary care would disclose to him.Fifield v. Kailroad Co., 42 N. H. 225-240;Nash v. Nashua, etc., Co., 62 N. H. 406,408.The evidence tends to show, and at the trial it was apparently not disputed, that the failure of a charge to explode was not uncommon, and might happen from various causes, as from a wetting of the fuse either before or after it was put in position, from a defect in its manufacture, its severance in the process of tamping, or by reason of its not extending to the charge; that, from whatever cause the failure happened, the usual and ordinary course of proceeding was to extract the charge in the method pursued by ...