Hjelm v. Western Granite Contracting Company
| Decision Date | 27 January 1905 |
| Docket Number | 14,199 - (146) |
| Citation | 102 N.W. 384,94 Minn. 169 |
| Parties | SWAN F. HJELM v. WESTERN GRANITE CONTRACTING COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Stearns county to recover $10,113 for personal injuries. The case was tried before Searle, J who directed a verdict in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed. Reversed.
Master and Servant.
The rule that a master cannot delegate to a servant the performance of his absolute duties, so as to relieve himself from the charge of negligence, applied to the facts of this case, and the evidence held sufficient to take the case to the jury.
H. S Locke, for appellant.
Reynolds & Roeser and Stewart & Brower, for respondent.
Action to recover for personal injuries alleged to have been caused by the negligence of defendant. A verdict was directed for defendant in the court below, and plaintiff appealed from an order denying his motion for a new trial.
The facts are as follows: Defendant is a corporation engaged in operating a stone quarry, in connection with which, in the conduct of its business, it becomes necessary from time to time to blast the rock in the quarry, that it may be removed and worked into marketable condition. Plaintiff was employed by defendant in its quarry, and on the day in question a blast threw a large rock upon and injured his leg. As a basis to his right of recovery, plaintiff alleged in his complaint, in substance and effect, that it was the duty of defendant, before exploding any blast, to pack and cover the holes in the rock wherein the powder and dynamite were placed, so that no pieces or fragments would be shot or scattered over the quarry by the explosion; that, disregarding its duty in this respect, defendant wholly neglected to pack and cover the holes wherein the dynamite and powder were placed for the blast which resulted in plaintiff's injury, but that it "negligently, carelessly, and prematurely, and without giving plaintiff an opportunity to get a safe distance away from said blast," unskilfully exploded the same without covering or otherwise protecting the same; and that, by reason of such carelessness and negligence, plaintiff received his injury. The answer of defendant was, in substance, a general denial.
The complaint is not the best form, but respondent's counsel, in their brief, concede that it alleges two acts of negligence on the part of defendant, which it is claimed were the proximate cause of plaintiff's injury: (1) The failure of defendant properly to pack and cover the blast before explosion; and (2) exploding the same prematurely and without previous warning to plaintiff.
1. With respect to the first ground of negligence, it is clear that plaintiff has no cause of action. It appears from the evidence that he and one Freberg were in charge of the matter of exploding this particular blast. They placed the dynamite and powder in the drilled holes, and attended to all arrangements and details leading up to the explosion. Whether there was a custom or rule requiring the blast to be covered before explosion or not, the matter was within the control of plaintiff and his fellow laborer; and, if they exploded it without covering, they assumed whatever risks were incident thereto. It is true that the testimony tends to show that defendant's foreman stated to plaintiff and his associate that it was unnecessary to cover this particular blast, but this would not render defendant liable, for the reason already stated -- that the matter was in the immediate control of plaintiff, and, if he exploded the blast without covering it, he is in no position to complain.
2. The second ground of negligence on which plaintiff claims a right of recovery presents a more serious question. As already stated, the explosion of this particular blast was under the control of plaintiff and one Freberg. All arrangements had been made by the attachment of an electric battery to explode the same, when a team was heard approaching the quarry, some distance away, whereupon Freberg, who, the evidence shows, had exclusive charge of the battery and explosion of the blast, directed plaintiff to go and warn the team away. This plaintiff did, and he testified that, when he was so directed by Freberg, he stated that when he had done so he would return to the place where the blast was to be exploded. While he was returning, and without notice or warning, the blast was exploded by Freberg, and resulted in a large rock striking plaintiff's leg and seriously injuring him.
It appears from the evidence that, according to a custom prevailing at the quarry, no blast was ever exploded without previously giving two distinct signals to enable the employees in the vicinity to seek a place of safety. Defendant's foreman, who was also president of defendant corporation, testified to the existence of the custom, and the evidence shows beyond controversy that it was not observed in this instance. Plaintiff insists that it was one of the absolute duties of...
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