McMahon v. Bangs
| Decision Date | 31 May 1904 |
| Citation | 62 A. 1098,21 Del. 178 |
| Court | Delaware Superior Court |
| Parties | JAMES F. MCMAHON, by his next friend, JAMES MCMAHON, v. ANSON M. BANGS |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Superior Court, New Castle County, May Term, 1904.
ACTION ON THE CASE (No. 104, May Term, 1903), to recover for injuries alleged to have been received by the plaintiff, a fifteen-year-old boy, by being struck upon the leg by a rock hurled from a blast in the stone quarry operated by defendant in Brandywine Hundred near Bellevue, while plaintiff was driving his brother's horse and cart which were being used in the service of the defendant company, in connection with said quarry.
At the trial, plaintiff testified in part, as follows:
That on the day of the accident, December 20, 1902, he was engaged in hauling dirt for the defendant with the horse and cart of his brother, William J. McMahon; that he drove the horse, and that certain employees of the defendant did the "stripping" (which witness explained was clearing off the soil from the top of the rocks), and loaded the dirt in the cart; that he was employed and paid by his brother for driving the horse and cart and that his brother had the right to discharge him. The witness then testified concerning the accident as follows:
By Mr Whiteman:
Q. What, if anything, happened to you on the 20th day of December, 1902? Did you meet with any accident? A. I got my leg broke.
Q. How? A. By a stone hurled from a blast.
Q. Where did the blast take place? A. Down in the quarry of Hughes Brothers and Bangs.
Q. Where were you working? A. Up on top of the bank.
Q. How near the edge of the quarry? A. About four feet.
Q. What were you doing at the time you were struck? A. Sitting on my cart.
Q. Was the cart being loaded or not? A. Yes, sir; I had just got backed in and they started to load the cart and I was struck.
Q. Where were you struck? A. On the right leg.
Q. What struck you? A. A stone.
Q. What became of you after that? A. I was knocked unconscious.
Q. Was there any warning of any kind given to you or the other men about there at the time this blast was fired? A. No, sir; there was not.
Q. What was the first thing you knew about a blast being fired? A. There was always warning given about five or six minutes ahead of the blast, in order to give us time to get away from the bank.
Q. What did you do when warning was given as a rule? A. Took the carts away, either down to the dump, or got away off from there.
Q. Was that done this day? A. No, sir; it was not.
Q. What was the first thing you knew on this particular day about a blast being fired? A. The first thing I knew after I was struck?
Q. Yes? A. When I was being carried out of the quarry store.
Q. Did you know anything at all about the blast until after you were struck? A. No, sir; I did not.
Q. Did anybody who was at work there where these carts were engaged in stripping leave the place just prior to the blast being fired? A. No, sir; they did not.
Q. Did they all stay there and keep on with their work? A. Yes, sir; kept on with their work; men who were laboring and all.
CROSS EXAMINATION.
By Mr. Emmons:
X. How long had you been employed at the quarry? A. From the twenty-ninth of October to the twentieth of December, 1902, the day I was struck.
X. That would be about two months or eight weeks? A. Yes, sir.
X. How long had you known that quarry? A. I heard tell of it for nine years.
X. You say that your brother employed you? A. Yes, sir; he did.
X. And you say that your brother had the right to discharge you? A. Yes, sir.
X. Did your brother tell you what to do? A. The boss up there on the hill told me what work to do when I went up there.
X. Had your brother anything whatever to do with the work up on top of the hill? A. No, sir; he had not.
X. Had your brother ever gone there with you? A. No, sir.
X. Did he ever give you any directions? A. He told me to be careful.
X. Therefore you were under the direction of the boss of the gang? A. Yes, sir; I was hauling the dirt.
X. Did he not tell you where to back your cart? A. Yes, sir.
X. Did he not tell you where to go with it? A. Yes, sir.
X. If you did not obey him what would happen? A. I think I would get laid off.
X. Then did not that boss have the right to lay you off? A. Well, he had the right to send me away from the quarry.
X. He had the right to discharge you, did he not? A. From the quarry, he did.
X. And your brother also had the right to discharge you if he wanted to, and so did the quarry man there, the boss? A. Yes, sir.
X. So that you were working under the directions of the boss of the gang? A. Yes, sir.
X. And did just what he told you to do? A. Yes, sir.
X. And if you did not do what he told you to do, he was likely to "fire" you? A. Yes, sir.
X. You say you had been there about eight weeks? A. Yes, sir.
X. About how many blasts a day were fired off there at that quarry? A. Well, sometimes there was ten or twelve maybe, if they were short of small stone or anything; sometimes it was not very many.
X. Were not there one hundred sometimes? A. There might have been.
X. It is a large quarry, is it not? A. Yes, sir.
X. You also said in your testimony that somebody usually gave notice? A. They always did until this day.
X. Who gave the notice? A. The men down in the quarry.
X. What men? A. The Italians; sometimes the walking boss in there.
X. Do you know what man it was down there that gave notice? A. No, sir; I did not know his name.
X. Was not there a man down there whose duty it was to give notice? A. I don't know whether he was there or not.
X. Was not there a man down there whose duty it was to give notice? A. The walking boss would; yes, sir.
X. Was not there a man down in the quarry whose duty it was to give notice or warning before the blasts were fired? A. Yes, sir; I think there was.
X. And you had been there eight weeks? A. Yes, sir.
X. And during all of those eight weeks there was somebody down in the quarry whose duty it was to give notice and who gave notice? A. Yes, sir.
X. And you had always had an ample opportunity to get out of the way until this day? A. Yes, sir.
X. Is that so? A. Yes, sir.
X. You say you know there was somebody down there whose duty it was to give notice. Was not that one of the men working down there? A. Yes, sir; I think it was.
X. Was not the man employed by Hughes Brothers and Bangs; just the same as the other men? A. Yes, sir.
X. And he was employed there, was he not; for the purpose of giving notice? A. So far as I know. I did not know his name; did not know much about it.
X. Was not this the only day while you were there that they failed to do it? A. Yes, sir.
X. Leaving out the question of the blasting, was there any danger there--was it a safe place? A. It was all right only the backing over.
X. It was all right in other respects. Then you would have been perfectly safe there if that blast had not gone off, would you not? A. Yes, sir.
X. And you would always have been safe there if you had had sufficient warning? A. Yes, sir.
X. You could have gotten out of the way? A. Yes, sir.
RE-DIRECT EXAMINATION.
By Mr. Whiteman:
R. Q. When you spoke of being subject to the orders of the boss, do you mean that when he would tell you to go and haul dirt to a certain place, you would have to go and haul it to that place? A. Yes, sir.
R. Q. And if you did not do it he could send you and your cart away? A. Yes, sir.
R. Q. That boss had nothing to do with employing you? A. No, sir; he did not. My brother did that.
Ralph Dale, a witness being produced, sworn and examined, on the part and behalf of the plaintiff, testifies upon cross-examination as follows:
By Mr. Emmons:
X. Could not there have been a warning given without your hearing it? A. I was right there, and the boss was right over the top of me and I could hear it as well as anybody else.
X. What boss? A. The boss we had there, the boss of the gang that told us what to do.
X. Who was that? A. I don't know; he was an Italian.
X. Was he not employed by the quarry people? A. He was employed by the quarry people.
X. And he was your boss, was he not? A. Yes, sir.
X. He told you where to put the horses and carts? A. Yes, sir.
X. And he told you where to take the dirt, did he not? A. Yes, sir.
X. Was it he who gave you warning? A. He did not give us any warning.
X. Did he give you warning sometimes? A. Yes, sir; he always did.
X. That man always gave warning, did he? A. Yes, sir; only when we were on the other side.
X. I mean did not not somebody down below give warning? A. No, sir; not that I recollect.
X. I mean at other times, did not somebody down where the blast was going off give warning? A. Yes, sir; they hollered "Fire."
X. And that was one of the men working there. A. Yes, sir.
X. Working for the firm of Hughes Brothers & Bangs? A. Yes, sir.
X. It was that man's duty, was it not, to give warning? A. I don't know who it was.
X. Was there a man there whose duty it was to give warning? A. Yes, sir.
X. And he always did do it until this day--is that right? A. Yes, sir.
X. And on this day he did not do it? A. No, sir.
X. Because the man down there did not say "Fire," it became unsafe? A. Yes, sir.
X. Because he did not say "Fire" and give you a chance? A. Yes, sir.
X. He would generally do that, and then your boss told you to get back? A. Yes, sir.
X. That was how the thing was done? A. Yes, sir.
X. That was the custom, was it? A. Yes, sir.
RE-DIRECT EXAMINATION.
By Mr. Whiteman:
R. Q You say it was the duty of this boss to give you warning when somebody below would holler to him? A. ...
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Prettyman v. Topkis
... ... the purpose of assisting the jury in determining the amount ... to assess as damages. McMahon v. Bangs, 21 Del. 178, ... 5 Penne. 178, 62 A. 1098; Messing v. Wilmington City Ry ... Co., 21 Del. 526, 5 Penne. 526, 64 A. 247; Braderman ... ...