Hendrickson v. U.S. Gypsum Co.

• Decision Date: 16 December 1905
• Citation: 105 N.W. 503
• Parties: HENDRICKSON v. UNITED STATES GYPSUM CO.
• Court: Iowa Supreme Court

105 N.W. 503

HENDRICKSON

v.UNITED STATES GYPSUM CO.^d1

Supreme Court of Iowa.

Dec. 16, 1905.

Appeal from District Court, Webster County; J. H. Richard, Judge.

Action at law for damages on account of a personal injury. There was a directed verdict at the close of the evidence for plaintiff, and judgment for costs in favor of defendant. Plaintiff appeals. Affirmed.Wm. T. Chantland and Mitchell & Hackler, for appellant.

Carr, Parker, Hewitt & Wright and Healy Bros. & Kelleher, for appellee.

BISHOP, J.

Defendant is engaged in operating a gypsum mine in Webster county. The strata being mined out is about 70 feet below the surface. From the foot of the shaft one or more entries extend out into the strata, and opening into such entries rooms are cut on either side, from which the gypsum is taken. It seems that at the time in question, and for some time before, the manner of doing the work was by blasting with some explosive material; the portions of rock so broken being then gathered up and removed from the room to the surface. The blasting was in charge of two of the employés of defendant, and several shots were fired each day. The work of removing the rock was being done by plaintiff and another employé of defendant. It appears that the men who were engaged in blasting, when ready to fire a shot, were accustomed to cry, “fire!” as a warning to other employés to retire from the vicinity of the room where the explosion was to take place. On the occasion in question it was known to plaintiff and the employé engaged with him that a shot was about to be fired in a room near where they were at work, and, as plaintiff says, they were waiting to hear the accustomed cry as a signal to retire to a place of safety. For some reason, which does not appear, the shot was fired without the warning being given. Plaintiff was struck on the head by a piece of the flying rock, and sustained the injury on account of which he seeks to recover in this action.

One ground of the motion to direct a verdict was that the act of negligence shown was that of a fellow servant, and not that of the defendant. We think the motion was rightly sustained. There is nothing in the record to show that any relation existed between those firing the blasts and plaintiff, save that of fellow workmen. The one was employed to loosen the rock, and the other to remove it. Both were engaged on equal footing, doing the master's work. Such cases are not within the employer's liability st...