Ongaro v. Twohy

• Decision Date: 28 March 1908
• Citation: 94 P. 916,49 Wash. 93
• Court: Washington Supreme Court
• Parties: ONGARO v. TWOHY et al.

94 P. 916

49 Wash. 93

ONGARO v. TWOHY et al.

Supreme Court of Washington

March 28, 1908

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Personal injury action by Luigi Ongaro against John Twohy and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded for a new trial.

Dunbar J., dissenting.

Edward J. Cannon, for appellants.

Maurice Smith and Gallagher & Thayer, for respondent.

MOUNT J.

Action for personal injuries. The defendants appeal from a judgment for $3,500, entered upon a verdict in favor of the plaintiff. The appellants were engaged in railroad construction work near Bonner's Ferry in Idaho. On the 8th day of December 1905, they were constructing a deep cut, using dynamite for the purpose of blasting out the rock and earth. The respondent was employed as laborer in shoveling rock and earth into cars at the face of the work. A hole had been drilled perpendicularly from the top of the work, some seven or eight feet deep. Several sticks of dynamite had been placed in this hole by the foreman and an employé known as a 'powderman.' These sticks of dynamite had become lodged in the hole, and thereupon the foreman in charge of the work directed the powderman to drive the dynamite down to the bottom of the hole. There is some dispute as to whether the foreman told the powderman to use a wooden stick or a steel drill for that work. At any rate, a steel drill was used for the purpose, and no notice or warning was given to the employés who were working below in the bottom of the cut. The use of the steel drill was dangerous, almost sure to explode the dynamite. The result was that the dynamite was exploded, and a large quantity of rock and earth was blown out of the face of the work and upon the respondent, who was working below. His leg was broken, and he was otherwise bruised. The negligence alleged was that the foreman caused the explosion of the dynamite without giving notice to the plaintiff, that defendants adopted a dangerous and unsafe way of tamping by using a steel rod instead of a wooden one, and that defendants failed to furnish plaintiff with a reasonably safe place to work.

At the trial the appellants offered to prove the laws of Idaho relating to vice principal and fellow servant. The court excluded this evidence, we think, correctly, because there was no intimation in the pleadings that appellants were relying, or intending to rely, upon the law of any other state, except the mere admission in the answer that the injury occurred in Idaho. If the appellants intended to rely upon the law of another state, both that fact and the law of such state should have been pleaded the same as other facts. 9 Enc. Pl. & Pr. 542; Cincinnati, H. & D. R. Co. v McMullen, 117 Ind. 439, 20 N.E. 287, 10 Am. St. Rep. 67; Estate of Mary J. Stewart, Deceased, 26 Wash. 32, 66 P. 148, 67 P. 723.

Appellants argue that the questions of fellow servant, safe place, and assumption of risk were improperly submitted to the jury. We shall not attempt to follow the argument, because it seems clear to us from an examination of the evidence that these questions were properly for the jury. In the first place, the powderman and the shift boss, who had charge of the blasting and drilling operations, and who were claimed by appellants to have been fellow servants with the respondent, were engaged in an entirely different class of work from the respondent. They were handling an extremely dangerous agency, viz., dynamite, requiring skill and great care, while the respondent was in the cut below, engaged as a common laborer shoveling earth into cars. In the next place, it was the special duty of the shift boss and the powderman to keep the place safe so as to protect the respondent, who had no means of knowing what they were doing, and no means of guarding against their acts. Under these circumstances it seems clear that the respondent was not a fellow servant with either the shift boss or the powderman, but that these two men necessarily represented the master, and were bound to notify laborers in places made dangerous by their work. Dossett v. St. Paul & Tacoma Lumber Co., 40 Wash. 276, 82 P. 273; Cook v. Chehalis River Lumber Company (filed March 6, 1908) 94 P. 189.

It is said that the blast which caused the respondent's injury was a premature explosion which the powderman and the shift boss did not know about, and that every person working near assumed the risk of such explosions. It is no doubt true that no one was prepared for the explosion when it occurred, but the evidence shows that a steel rod used to tamp dynamite into a hole is about as certain to cause an explosion as a lighted fuse. The shift boss and the powderman were therefore bound to know this fact, and to notify others of the danger. They were the only persons who assumed the risk of their own careless conduct in this respect.

Upon the measure of damages the court instructed the jury as follows: 'And if you find a verdict for the plaintiff your verdict will be in one sum such as will compensate plaintiff for the injuries which he has sustained, or the pain which he has endured, or pain and suffering which he may suffer in the future, and for the loss of employment. You should not award him anything by way of punishment. You should not award him anything as the result of...