Lanza v. Le Grand Quarry Co.

• Decision Date: 13 July 1904
• Parties: LANZA v. LE GRAND QUARRY CO.
• Court: Iowa Supreme Court

124 Iowa 659

100 N.W. 488

LANZA

v.LE GRAND QUARRY CO.

Supreme Court of Iowa.

July 13, 1904.

Appeal from District Court, Marshall County; Geo. W. Burnham, Judge.

Plaintiff was injured through the discharge of an unexploded charge of dynamite in defendant's mine, and brings this action to recover damages for the injuries received by him. Trial to a jury, directed verdict for defendant, and plaintiff appeals. Reversed.Boardman, Aldrich & Lawrence, for appellant.

Binford & Snelling, for appellee.

DEEMER, C. J.

This is the second time the case has been before us. The opinion on the first appeal will be found in 115 Iowa, 299, 88 N. W. 805. Plaintiff is an Italian, who came to this country in the year 1891. Shortly after his arrival here, he entered the defendant's employ, and continued therein until he received the injuries complained of. He was and is unable to read, write, or speak the English language, although he has some familiarity with his native tongue. When he entered the defendant's employment he was 26 years of age, but had had no prior experience in quarrying. What he knew regarding these operations and the use of explosives, he learned from observation in the quarry during the time he worked there. It seems that he was not specially instructed as to his duties, nor was he informed as to the dangerous character of the explosives used. On the morning of November 10, 1897, he and one Caputo were loading stone into a wagon near the quarry (a work for which he was employed), when they were ordered by the foreman (one Thurnes) to go to the top of the ledge and blast the rock. Theretofore plaintiff had done the blasting by exploding charges in holes drilled by him, but he had had no experience in dealing with holes not drilled by his own hand. Caputo went to the tool box, secured the necessary tools and explosives, and he and plaintiff went to the place where they were directed to go. It seems that, after explosives are put into holes drilled for the purpose, it is the custom to put sand over the charge, with which to tamp it down, so that, as plaintiff started to follow his companion, he took up a shovelful of sand for that purpose. Arriving at the designated place, the two men found a hole which had been drilled some weeks before, bearing the marks of recent rains, but with no indications that it had been charged. They examined the hole carefully, and Caputo directed the plaintiff to put a tamping bar into it, in order to determine its depth. This Lanza did, and, while attempting, as he said, to push what appeared to be some loose material down into the hole, set off an unexploded charge of dynamite, and received the injuries of which he complains. There is a dispute in the evidence on some of these propositions, but a jury would have been warranted in finding these to be the facts, so far as related. The negligence charged against the defendant is: “(a) Failure to warn the appellant of the danger existing at the place where appellee's vice principal, Gunder Thurnes, had directed appellant to work. (b) Failure to provide a careful and competent foreman to direct appellant in the discharge of his duties. (c) Suffering and providing for the free and unrestricted access by all grades of persons to a dangerous explosive (dynamite) with which appellee carried on its work. (d) Failing to provide a regular system of inspection of the places where appellant was directed to work, in which places explosives had been formerly used. (e) Failing to promulgate and enforce proper rules and regulations for the safety of appellee's employés, viz., rules and regulations as to storing and handling dynamite; rules and regulations governing the issuing of dynamite to employés; rules and regulations requiring the marking of unexploded charges of explosives.”

Before going to the merits of the case, there is a question of practice which should be settled. Defendant's entire testimony consisted of a translation of the shorthand reporter's notes of the evidence taken on a former trial. To this, plaintiff objected. He also produced two of the witnesses whose testimony was taken on a former trial, and, on account of the presence of the witnesses, objected to the reading of their testimony from the transcript. One of these was recalled for further cross-examination by the plaintiff after his testimony had been read from the transcript. The testimony of other witnesses was objected to because they were residents of the county where the trial was being conducted. Under the statute as it existed prior to the year 1898, such testimony would have been clearly incompetent. Baldwin v. R. R., 68 Iowa, 37, 25 N. W. 918. In that year the Legislature passed an act which, so far as material, reads as follows: “The original shorthand notes * * * or any transcript, when material and competent, shall be admissible as evidence at any re-trial of the case in which the same were taken and for the purpose of impeachment in any case, and shall have all the force and effect as a deposition and subject to the same objections so far as applicable. * * * No portion of the transcript of the shorthand notes of the evidence of any witness shall be admissible as such depositions,” etc. See Acts 27th Gen. Assem. p. 16, c. 9. The exact point now presented has never heretofore been determined by this court, and we are therefore to decide whether the trial court was in error in any of its rulings. It seems to us that this statute, in effect, supplies the grounds for the taking of the deposition of a witness; that is to say, the shorthand notes, or a translation thereof, shall have all the force and effect of a deposition regularly taken, and for just cause. When these are offered, they have the same force and effect as the deposition of a witness regularly taken, for statutory grounds. So considered, they are admissible in evidence, the same as a deposition, and subject to the...