Lanza v. Le Grand Quarry Co.

• Decision Date: 21 January 1902
• Parties: LANZA v. LE GRAND QUARRY CO.
• Court: Iowa Supreme Court

115 Iowa 299

88 N.W. 805

LANZA

v.LE GRAND QUARRY CO.

Supreme Court of Iowa.

Jan. 21, 1902.

Appeal from district court, Marshall county; G. W. Burnham, Judge.

Prior to his injury the plaintiff had been employed in the defendant's quarry for a number of years as a quarryman. In November, 1897, he, with three others, was working in said quarry under the direction of a foreman. He alleges that at said time the foreman directed one Caputo and himself to leave the particular place where they were then at work, and to go to the top of a ledge or bench of rock in said quarry, and blast the same; that they went to the ledge as directed, and found a hole there, such as was usually used for blasting purposes; that the plaintiff attempted to clean it out with an iron scraper, and, being unable to do so, he inserted a steel tamping bar about three feet long, and while using it it struck a concealed and unexploded charge of dynamite, which exploded, and produced the injury complained of. There was a trial to a jury, and a verdict and judgment for the plaintiff, from which the defendant appeals. Reversed.Binford and Snelling, for appellant.

H. A. Kroeger and Boardman, Aldrich & Lawrence, for appellee.

SHERWIN, J.

There is a conflict in the evidence as to whether the plaintiff was directed to do the work he was engaged in at the time he was injured, or whether he voluntarily left his other work to engage therein. The evidence conclusively shows, however, that he and Caputo went to the ledge in question, and there found the old hole which had been drilled for blasting purposes. Caputo says that he explored it, and found it about two feet deep; that he then placed therein a stick of dynamite about an inch long, and pushed it down in the hole some six inches, where it stuck; that the plaintiff then took a steel tamping rod, and undertook to force it down by tapping it; that he cautioned him of the danger in so doing, but that he continued until the explosion occurred. On the other hand, the plaintiff claims that there was no obstruction in the hole within two feet of the top; that he did not see Caputo put any charge therein, or know that any was there; and that he received no warning from him. As to these matters the finding of the jury is final. If the plaintiff is entitled to recover at all, his recovery must be based on the finding that there was an unexploded charge in the old hole when he was sent there to work, of which he was not advised, and of which the defendant was or should have been advised; for it is evident that, if the man Caputo placed the explosive substance in the hole after he went there at the time in question, it would be the act of a fellow servant, for which the defendant is in no way liable, for the place was safe when the plaintiff was directed to go there to work. City of Minneapolis v. Lundin, 7 C. C. A. 344, 58 Fed. 525. It is immaterial whether the foreman did or did not direct the use of the old hole in blasting the rock. If he sent these men there with instructions to do that particular work, he should know that they would use the means at hand for doing it, and the evidence shows that he knew of the old hole at that place. Putting aside for the time being the question of the plaintiff's contributory...