Wiita v. Interstate Iron Co.

• Decision Date: 14 February 1908
• Citation: 103 Minn. 303,115 N.W. 169
• Parties: WIITA v. INTERSTATE IRON CO.
• Court: Minnesota Supreme Court

103 Minn. 303

115 N.W. 169

WIITA

v.INTERSTATE IRON CO.

Supreme Court of Minnesota.

Feb. 14, 1908.

Appeal from District Court, St. Louis County; Wm. A. Cant, Judge.

Action by Niko Wiita against the Interstate Iron Company. Verdict for plaintiff. From an order denying a motion for judgment notwithstanding the verdict or a new trial, defendant appeals. Affirmed.

Syllabus by the Court

In an action to recover damages caused by the premature explosion of a charge of dynamite, due to a defective fuse, it is held that the evidence justified the trial court in denying a motion for judgment for the defendant notwithstanding a verdict for the plaintiff.

The fact that the brand of fuse supplied by a mining company for the use of its miners is in general use and favorably known is not conclusive evidence that the company is not guilty of negligence in furnishing that particular kind of fuse for use in its mines. Nor is the fact that a better and safer kind of fuse has been introduced within recent years and come into common use conclusive evidence that the company is negligent in using the older kind. Both facts are but evidence for the consideration of the jury in determining whether the employer failed to exercise the degree of care required by the circumstances, the nature of the instrumentalities, and the danger to be anticipated from defective appliances.

Notice to the mine captain, who has charge of all underground work, of previous accidents resulting from defects in the fuse in use, is notice to the mining company, although the superintendent of the mine had control over the matter of purchasing and supplying the fuse for the mine. Davis & Hollister, for appellant.

John R. Heino, Wm. E. Culkin, and Warner E. Whipple, for respondent.

ELLIOTT, J.

The respondent, Niko Wiita, while in the employ of the Interstate Iron Company, working as a miner in the Lincoln mine, was injured by the explosion of a charge of dynamite, and in an action for damages, founded upon the alleged negligence of the company in furnishing him with defective fuse, recovered a verdict for $15,000. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, the defendant appealed to this court. Numerous questions are raised by the assignments of error, but the principal stress is laid upon the claim that the evidence is insufficient to prove negligence on the part of the defendant.

1. Wiita was 23 years old, and had been in this country for about four years. He had worked for the appellant company for about three days, but he had previously worked in similar mines in Michigan and Wyoming and was reasonably familiar with fuse and the use and properties of dynamite. At the time of the accident Wiita and his partner, Perkio, were working in a drift. They had drilled two holes horizontally into the face of the drift about four feet apart and about the same distance from the floor, and were attempting to ‘check’ or ‘squib’ the holes. This checking or squibbing, as it is called, was done by putting a small charge of dynamite into each hole, pushing it near the bottom thereof, and exploding it by means of a fuse, thus enlarging the hole and preparing the way for the larger quantity of explosive by which the ore was blasted out. Wiita had prepared the checking blasts for both of the holes by taking two half sticks of dynamite and inserting in the end of each a fulminating cap, which was attached to a piece of double tape fuse. One of these charges was placed in each hole and shoved in about two feet with a swab stick, leaving three or four inches of the free end of the fuse projecting from the holes into the open drift. These projecting ends were split with a knife, so as to expose the powder and cotton thread and render the fuse more easily lighted. After having thus prepared the charges and the fuses, the candles which each miner carried were applied to the fuses. It seems that Wiita's fuse caught fire and burned all right, but his partner's did not, and Wiita also attempted to light it, without success. Both miners then retired to a place of safety until after one charge exploded. After waiting five or six minutes, Wiita returned to light the fuse for the blast which had not exploded. The smoke was still dense about the hole. Wiita seems to have had two candles in his hand at the time, one of which, for some reason, he placed upon the floor near his feet. He then stuck his swab stick into the hole and lighted the fuse. The candle with which the fuse was lighted blew out, and Wiita leaned over to pick up the other candle. While in this position the charge exploded and drove the swab stick into his left eye and in a downward course through his head. He survived the injury, but is totally blind.

2. The negligence with which the company was charged consisted in furnishing the workmen with a defective kind or brand of fuse, with knowledge or notice or means of knowledge of the fact that it was defective, when another and safer brand of tape was procurable in the market. More specifically the plaintiff claimed and offered evidence tending to show (a) that not merely the particular section of his fuse used by him at the time of his injury, or the particular coil of tape from which the fuse was cut, was defective, but that the tape fuse furnished by the company for the use of the miners at the Lincoln mine was defective as to kind, class, and brand, in that it burned too rapidly and thus produced premature explosions and rendered its use dangerous; (b) that the defendant company had knowledge of this defect by notice to the captain of the mine through the complaint of certain miners and the reputation of the fuse at the Lincoln mine; and (c) that the tape fuse was not a reasonably safe instrumentality, and that the company was therefore wanting in due care in furnishing it to the miners for use in so dangerous and hazardous a work, in view of the seious nature of the results which were likely to follow its use.

3. The fuse used by the miners was kept in the powder house or room in the mine. It was purchased and brought there in cases and coils, and was placed on tables, from which it was cut and taken by the miners as occasion required. They determined for themselves the length of the fuse for the several blasts. There were two kinds of fuse in use in the mines, known as ‘tape fuse’ and ‘string fuse,’ distinguished outwardly by their coverings. Comparatively little of the string fuse had been used in this mine. The tape fuse, of which there were two brands, known as the ‘Climax’ and the ‘Ensign & Bickford,’ was wound with tape, while the string fuse was wound with string. This outward covering protected the interior portion of the fuse, which in the tape fuse consisted of a thread of cotton and a train of fine black powder which extended through its entire length, incased and inclosed by jute thread. At the time of the accident the miners were using the double tape fuse; but it was not appear whether it was of the Climax or the Ensign & Bickford brand. These brands were, however, so nearly alike that it is difficult, if not impossible, to distinguish them by appearance or quality. The appellant claimed that the interior structure of the tape and string fuse is the same, and the both burned in the same time and with the same regularity; but that is evidence tending to show that this is not strictly correct, as in the string fuse the jute threads which formed the immediate covering of the powder train was inclosed by gutta percha, while the corresponding covering of the double tape fuse was a preparation of coal pitch. It also appears that this gutta percha was more expensive, and had previously been used only in the higher-priced fuses manufactured for use in firing torpedoes under water. It was claimed that because of the use of gutta percha string fuse was more impervious to water, more pliable, and thus furnished a better protection for the powder train, and rendered it less liable to be disarranged by the breaking of the outside cover.

The evidence as to whether the string fuse is recognized as safer than the double tape fuse was conflicting, and fairly made an issue for the jury. It appeared that for many years double tape fuse of the general brand furnished the miners in this mine had been in general use and was recognized in the trade as a standard fuse. It was manufactured by all the fuse dealers, and the different brands were so much alike that only experts were able to distinguish them. This condition prevailed until about six years before the time of this trial, when the string fuse seems to have been first placed on the market. Tape fuse had been used so generally that the new type of fuse made its way but slowly. At the time of the trial, however, the Climax Fuse Company, which seems to have manufactured both kinds, was selling one-half as much string fuse as tape fuse, and the sale of the string fuse was increasing. It was rapidly being introduced in the mining districts of Michigan and Minnesota, and was exclusively used in some of the mines. In the summer of 1905 a large proportion of the fuse used by a company which used more than one-half of all the fuse sold in the district was string fuse. A writness who was the defendant's superintendent at the time of the accident, and who thereafter became president of another company, testified that his new company used the string fuse exclusively. It thus appears that the new type of fuse had been introduced a few years before the time of this accident, and that it was making considerable headway towards supplanting the old style of fuse. The most that can fairly be claimed is that it was claimed to be a superior and safer appeliance, and that the correctness of the claim had been admitted by many mining men. The old style of tape fuse, which had been in general use for many years, had not been discredited and supplanted, but was still in common...