Solleim v. Norbeck & Nicholson Co.
| Decision Date | 18 May 1914 |
| Docket Number | 3486. [d] |
| Citation | 147 N.W. 266,34 S.D. 79 |
| Parties | SOLLEIM v. NORBECK & NICHOLSON CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Spink County; Alva E. Taylor, Judge.
Action by Jacob Solleim against the Norbeck & Nicholson Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.
Roy T Bull, of Redfield, for appellant.
Sterling & Clark, of Redfield, for respondent.
From the record it appears: That respondent, Norbeck & Nicholson Company, is a corporation engaged in the business of constructing and repairing artesian wells. That appellant was employed by respondent as a laborer to assist in the prosecution of such business. That a well crew consists of a foreman or boss and some three or four assistants or helpers. That the managing officers or agents of respondent instructed the foreman as to what particular work was to be done, and the helpers received their instructions from the foreman. That dynamite was used in the prosecution of such business in stopping the flow of and in removing rocks and other obstacles from such wells. That appellant was injured by an explosion of dynamite used in the endeavor to stop the flow of a well on the 9th day of May, 1910. That Nicholson, one of the managing agents of respondent, instructed one Vognild the foreman of the crew with which appellant worked, to stop the flow of a certain well in the city of Redfield. That Vognild directed appellant to assist in said work. That under the direction of Vognild, who also assisted in the work, a 2 1/2-inch iron pipe, 18 or 20 feet long, lying upon a hillside, was filled from the upper end with stick dynamite, about 50 pounds, the same being tamped and pushed into said pipe with a bamboo fish pole. When filed a small amount of gunpowder was placed upon the dynamite, and the pipe thus filled was lowered into the casing of the well down to a depth of about 700 feet underground, and then exploded by dropping thereon a red-hot iron bolt. The particular part of said work assigned to appellant was to assist in carrying and placing said pipes when so loaded and filled to said well, ready to be lowered by machinery. The process of so loading and firing off these pipes of dynamite had proceeded to the afternoon of the fifth day. Vognild was loading a certain pipe, personally placing the dynamite therein, and tamping the same down with the fish pole, and the pipe was nearly filled; some 45 pounds of dynamite having been placed therein. Portions of the dynamite, in being placed in and pushed down the pipe, had stuck and adhered to the sides of the pipe, so as to clog and interfere to some extent with the further placing of dynamite therein. Vognild, in the presence of appellant, for the purpose of scratching off and loosening from the inside of the pipe the portions of dynamite adhered thereto, drove into the end of said fish pole a nail. Immediately after, while Vognild was using such fish pole with the nail in it for such purpose, the explosion occurred which injured appellant, who was standing near by Vognild waiting to carry said pipe to be lowered into the well. Appellant testified that at the time Vognild was driving the nail into the pole he asked him if it was dangerous, and that Vognild replied that it was all right. Appellant also testified that he knew dynamite was a dangerous thing to handle, that it was necessary to be careful with it, that it might possibly explode, but "I did not know that dynamite would explode by pounding it with a fish pole with a nail in it." Appellant also testified that no one restrained him from going away from the place where such pipe was being filled.
'On the trial appellant was asked the question if he knew, at the time this pipe was being tamped with dynamite with a fish pole with a nail in it, that it was more dangerous to have the nail in the pole than not to have it. Objection was made to this question on the ground that it was incompetent, immaterial, leading, and called for a conclusion. The objection was sustained, and appellant excepted, and now urges such ruling as error. We are of opinion that it was prejudicial error to sustain such objection. One of the crucial and vital questions in this class of cases is whether or not the injured party, knowing the dangers to which he was exposed, assumed the risk of being injured by remaining in close proximity to the dangerous objects. Whether or not he assumed such risk depended in a large measure upon whether or not he fully appreciated and understood that the use of the nail in the fish pole was more dangerous than the use of the pole without it. The knowledge and understanding of the injured party as to the danger to which he was exposed is always a circumstance the jury have a right to take into consideration in such cases. Brotski v. Wis. Granite Co., 142 Wis. 380, 125 N.W. 916, 27 L. R. A. (N. S.) 982, and note; King v. Morgan, 109 F. 446, 48 C. C. A. 507; O'Brien v. Buffalo Furnace Co., 183 N.Y. 317, 76 N.E. 161; Cinkovitch v. Thistle Coal Co., 143 Iowa, 595, 121 N.W. 1036; Holman v. Kempe, 70 Minn. 422, 73 N.W. 186; Pinney v. King, 98 Minn. 160, 107 N.W. 1127; Lofrano v. Water Co., 55 Hun, 452, 8 N.Y.S. 717; Perreault v. Wis. Granite Co., 144 N.W. 110; Iverson v. Look, 143 N.W. 332.
'At the close of the plaintiff's testimony a verdict was directed for defendant, to which ruling plaintiff excepted and now urges the same as error. We are of the view that the case should have been submitted to the jury. It is contended by respondent that there is no evidence showing that the explosion which injured plaintiff was caused by placing the nail in the fish pole. The jury had the right to take into consideration all the surrounding facts and circumstances, and apply thereto their own knowledge of natural laws, and deduce therefrom such conclusions as were warranted thereby. From the circumstance that Vognild had been tamping dynamite into similar pipes for five days with the fish pole without the nail, and there had been no explosion, and that an explosion did occur at the very first use...
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