McKane v. Marr & Gordon

• Decision Date: 22 August 1904
• Citation: 77 Vt. 7,58 A. 721
• Court: Vermont Supreme Court
• Parties: McKANE v. MARR & GORDON.

58 A. 721

77 Vt. 7

McKANE

v. MARR & GORDON.

Supreme Court of Vermont. Washington.

Aug. 22, 1904.

Exceptions from Washington County Court; Stafford, Judge.

Action by Terrance McKane against Marr & Gordon. Judgment for plaintiff, and defendants bring exceptions. Reversed.

Argued before ROWELL, C. J., and TYLER, MUNSON, START, and WATSON, JJ.

M. M. Gordon and Richard A. Hoar, for plaintiff.

Senter & Senter and W. A. Lord, for defendants.

MUNSON, J. The plaintiff received his injuries while working for the defendants in their granite quarry under the general direction of the foreman of the quarry, one O'Hearn. He was sent by O'Hearn to remove the tamping from some drill holes which had been fired the night before without lifting the rock, and his evidence tended to show that O'Hearn assured him that the charges had exploded, and gave his reasons for saying so. There was powder in one of the holes, which exploded while the plaintiff was at work on the tamping. The court charged the jury, in substance, that the plaintiff was entitled to recover if O'Hearn told him that the powder had exploded, and he believed and relied upon the statement, and, as a careful and prudent man, had no reason to believe otherwise. The defendants excepted to the failure of the court to instruct the jury upon the substance of assumed risks.

The plaintiff assumed more than the duty of taking ordinary care for his safety. He assumed the risk of known and obvious dangers ordinarily incident to his employment, including the risk of dangers that could not be detected or avoided by ordinary care. He could not relieve himself from this burden by relying on the assurances of the foreman in a matter regarding which he knew or ought to have known that the foreman had no superior knowledge. If the evidence afforded a basis for the claim that the plaintiff knew or ought to have known that O'Hearn had no superior knowledge regarding the situation, and that an unexploded charge might be under the tamping, whatever the indications to the contrary, the defendants were entitled to a charge upon this subject There was evidence tending to show that the plaintiff was an experienced quarry-man, accustomed to all kinds of quarry work; that, when a blast is unsuccessful, many conditions and indications are to be considered in determining whether the explosion covered all the charges; that, when the tamping of a hole is not blown out, it is impossible for any one to say with certainty that the...