Durante v. Great Northern Ry. Co.

• Citation: 116 P. 870,64 Wash. 395
• Parties: DURANTE v. GREAT NORTHERN RY. CO.
• Decision Date: 01 August 1911
• Court: Washington Supreme Court

116 P. 870

64 Wash. 395

DURANTE v. GREAT NORTHERN RY. CO.

Supreme Court of Washington

August 1, 1911

Department 1. Appeal from Superior Court, Spokane County; John D Hinkle, Judge.

Action by Joseph Durante against the Great Northern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

L. F Chester and William A. Monten, for appellant.

Roche &amp Onstine, for respondent.

PARKER J.

This is an action to recover damages for personal injuries which the plaintiff claims resulted to him from the negligence of the defendant in causing a premature explosion of dynamite while doing excavation work upon its line of railway near the Cascade tunnel. A trial before the court and a jury resulted in a verdict and judgment in favor of the plaintiff. The defendant has appealed, contending that the trial court erred in denying its motions for nonsuit, for an instructed verdict, and for judgment notwithstanding the verdict.

Appellant also made a motion for a new trial, but its attorneys have in their brief expressly abandoned that motion, and say that 'we do not care for a new trial.' We are therefore not concerned with any errors occurring in the cause which could only have that result.

There was competent evidence introduced in behalf of respondent sufficient to warrant the jury in believing the following: On October 19, 1907, appellant was engaged in improving its railway near the Cascade tunnel. In connection with this improvement excavations were being made requiring a considerable amount of blasting with dynamite. This blasting was in the immediate charge and control of one Corea, who had the handling of the dynamite, prepared the blasts by loading dynamite into holes drilled into the rock for that purpose, and exploded the charges. He was the only man there doing that work. He was experienced in the work and had then been engaged in it for appellant for several months. This work occupied the larger part of his time. At other times he did whatever he was told to do by the foreman. On October 19, 1907, at the time of the injuries occurring to the respondent he had been employed for some time by appellant as water boy, a part of his duties being also to attend the brake on a small dump car used in the work. These were his only duties up to that time. He was then only 19 years old, and entirely without experience in the handling or use of dynamite. He only knew in a general way that it was dangerous, and had heard from the men that to cause the dynamite to come in sudden contact with an iron or steel instrument was dangerous, as likely to cause an explosion. A short time before the explosion causing respondent's injuries he was attending the brake on the dump car not far from where Corea was at work preparing to load a hole with dynamite. Respondent was then called by Corea to come and help him. Respondent refused to go, and, as he says, because that was not his work and he was afraid. After repeating the request three or four times Corea spoke to the foreman about it, when the foreman told respondent to help Corea, and when respondent again protested against doing so, the foreman swore at him and peremptorily ordered him to go and help Corea. He then obeyed. A two-inch hole had been drilled in the rock about 22 feet deep, and under Corea's direction respondent put sticks of dynamite in the hole while Corea pushed them down with a wooden stick, such as is usually used for that purpose. It was well known to persons of experience in the work that it was very dangerous to use an iron or steel rod for such purpose, because of the probability of causing an explosion thereby. After several sticks of dynamite had been put into the hole in this manner, Corea attached a cap and a fuse to another stick of dynamite, piaced it in the hole and tried to push it down with the wooden stick, but when about six feet down it stuck and could not be pushed any further with the wooden stick, and then without any warning Corea picked up a steel drill, being a long steel rod, and proceeded to use it for pushing the dynamite down, in the place of the wooden stick. As soon as respondent noticed that the steel rod was about to be so used, he started to run away, but the contact of the rod with the dynamite or the cap caused an explosion resulting in his injuries before he got any distance away. Corea was killed by the explosion. It is not contended that the act of Corea in using the steel rod was other than an act of gross negligence on his part. Indeed, it is admitted in appellant's brief that 'it is exceedingly dangerous to use an iron or steel rod in doing this work.'

The main contention of counsel for appellant is that Corea and respondent were fellow servants in this work, and hence, that the negligence of Corea was not that of the appellant, his employer. It seems to us that this contention is not sound. It is true that it does not appear that Corea was the foreman in charge of the work as a whole, nor does it appear that he had any authority to employ or discharge men; but it does clearly appear that he had charge of this particular work and that...