Staldter v. City of Huntington
| Decision Date | 31 October 1899 |
| Docket Number | 18,678 |
| Citation | 55 N.E. 88,153 Ind. 354 |
| Parties | Staldter v. City of Huntington et al |
| Court | Indiana Supreme Court |
From the Kosciusko Circuit Court.
Affirmed.
B. F Ibach, J. G. Ibach, W. D. Frazer and O. Oldfather, for appellant.
J. F France, Z. T. Dungan, Walter Olds and C. F. Griffin, for appellees.
Appellant sued the city of Huntington, and Keefer and Hallwood, in the Huntington Circuit Court, to recover damages on account of personal injuries sustained by reason of an explosion of dynamite while appellant was at work upon the construction of a sewer in said city. The defendant Hallwood, it appears, was not served with process, and the action was prosecuted only against the city of Huntington and Keefer. The cause was transferred to the Kosciusko Circuit Court and, at the close of plaintiff's evidence, the court, upon the separate request of each of the defendants, instructed the jury to return a verdict in favor of the defendants; which was accordingly done. This ruling is assigned in the lower court as a cause for a new trial. It is assigned as error in this appeal, among others, that the trial court erred in overruling the motion for a new trial, and it is insisted by appellant's counsel that the cause under the evidence ought to have been submitted to the jury for their determination. This seems to be the principal question involved in this appeal.
The complaint is in three paragraphs. The first seeks to recover for the injury sustained by the plaintiff by reason of an explosion of dynamite, which occurred on November 9, 1894, while he was in the employ of the defendants as workman upon the sewer. Counsel for appellant, however, seemingly do not claim any right to recover under the evidence on this paragraph. In fact it may be said that there is no evidence in the record which in any manner can be said to sustain a recovery upon the cause of action as alleged in the first paragraph; and therefore it may be considered as eliminated from the case, so far as this appeal is concerned.
The facts, as alleged in the second paragraph of the complaint, may be said to be as follows: The city of Huntington is a municipal corporation organized under the general laws of this State, and, as such city, it undertook to have a sewer constructed, and for that purpose entered into a written contract with the defendant Keefer and his partner, one Hallwood, to construct this sewer. In order to construct the sewer it was necessary to excavate a "flinty rock" and, before the city contracted with the contractors, Keefer and Hallwood, the common council thereof knew that these contractors would use a powerful explosive material known as dynamite in blasting and excavating this rock, and that it would be necessary that the dynamite should be handled by careful and competent persons in order to avoid injury to persons and property; that, from the time of the commencement of the work upon the sewer up to the 9th day of November, 1894, the city knew that these contractors were using dynamite in blasting this rock and that it was handled and used by careless and incompetent men who, by their carelessness, had caused the death of individuals, and the destruction of property; and, notwithstanding this knowledge and notice upon the part of the city, it failed to direct what care should be exercised in the use of the dynamite, or what precaution should be taken by said contractors in the use thereof, in order that life and property might be protected. After alleging these facts, the pleading proceeds to aver that the plaintiff was employed by said contractors to work for the city of Huntington on this sewer in shoveling dirt and stone from the sewer, and that he was ignorant of the care and methods necessary to be employed in handling dynamite and had nothing to do with the use thereof; and it was no part of his duty to work about the sewer where the same was used in blasting the rock, but his duty was to shovel dirt and rock out of the sewer after the blasts had been made and the rock had been picked loose by other employes.
It is then averred that on December 2, 1894, the plaintiff and several other employes of said city were ordered by said contractors to shovel dirt and stone from the sewer at a place different from where they had previously worked, and that one of said workmen struck a piece of undischarged dynamite hidden in said rock, and which had been placed there as a charge, by order of the contractors, to be fired off to loosen the rock, by employes whose duty it was to do the blasting; that for some reason this dynamite was left undischarged after an attempt had been made to discharge it, and no examination was made to see if any dynamite remained undischarged; that a stroke made by said workman with his pick caused the dynamite to explode with great force, whereby the plaintiff, without any fault or negligence on his part, was seriously injured by means of stone and dirt being hurled against him; that he did not know, at the time of the accident, that the place where he was injured was one of danger, but that its dangerous character was known to said contractors; that neither the plaintiff nor the employe, who exploded the dynamite, had any knowledge that there was any dynamite at or near where they were at work and that the defendants did not notify plaintiff that such place, where the accident occurred, was more dangerous than the place where he had previously worked; that the defendants knew that the charge of dynamite had been placed where it exploded, at the time of the injury, but they did not make an examination to learn if any of it remained undischarged; wherefore, plaintiff says, because of such negligence of said defendants, and without any fault on his part, he was injured as aforesaid, etc.
The third paragraph of the complaint, after alleging that the city of Huntington is a municipal corporation, etc., states that it entered into a written contract with its codefendants, Keefer and Hallwood, to construct a sewer. It then proceeds to set forth substantially the following facts: That under this contract it was provided that these contractors should employ laborers who were residents of the city of Huntington, except experts; that it was also provided therein that the work in the construction of such sewer was to be performed in a workmanlike manner to the satisfaction and acceptance of the city engineer and common council; that said contractors further agreed under the contract to hold and save said city harmless from all damages arising out of the construction of said sewer and sustained by citizens or their property on account of blasting by the use of dynamite, or from leaving pits or openings to said sewer unprotected; that, in order more fully to protect and indemnify itself, in the event it should be compelled to pay any such damages, the city took from said contractors a good and sufficient bond.
In the construction of said sewer it became necessary to excavate a "hard, flinty rock"; which fact was known to the city before it let the contract for said improvement, and it well knew that the contractors, in blasting and excavating such rock, would use dynamite, and that it would require careful persons to handle such explosive material, in order to avoid injury to persons and property. It is further charged in this paragraph that the city of Huntington, having all the right of supervising said work, as above set out, failed in its duty in this, that it did not see that the common labor was done by residents of said city, and that experts were employed when necessary; that the city did not direct how or in what manner the dynamite should be used by said contractors, or what care or caution should be exercised in its use, in order to prevent injury to laborers, and made no rules or regulations in respect to the use of such dangerous material nor as to the manner that its inexperienced employes were to be instructed, so as to prevent injury; and that no such instructions were given to the plaintiff, etc. That from the commencement of the work upon the sewer until December 4, 1894, the city, it is alleged, well knew that the defendants were not employing men who were experts in the use of dynamite, and that neither were all of the common laborers, employed by them, residents of said city; and that it also knew that the work was not being done in a proper manner, by using such explosive material; and that said Keefer and Hallwood were allowing it to be handled by careless and incompetent men, "who, by their carelessness and negligence in handling this dynamite and in preparing the same by warming it at the fire instead of by warm water, which is the only safe way, caused destruction to property and death to individuals;" that neither at the time of entering into said contract, nor at any other time after the city had knowledge of the careless handling of such dynamite, did it demand that experts should be employed to handle such material, nor did it direct how it should be used, nor what precaution should be taken in its use to protect life and property; and that it wholly failed to exercise the right of supervision as reserved by it in said contract. It is alleged that the plaintiff was "employed by said contractors to work for said city to shovel dirt and stone, under the agreement that said contractors had with the city, and that he was a resident of the city of Huntington but not an expert laborer."
Plaintiff's duty, it is averred, was to shovel loose stone and dirt out of the sewer as the work therein progressed, and he had nothing to do with the handling of dynamite or other explosive material, and had no means of knowing when or where the dynamite was used, and was...
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