Wiskie v. Montello Granite Co.

• Decision Date: 15 October 1901
• Citation: 87 N.W. 461,111 Wis. 443
• Parties: WISKIE v. MONTELLO GRANITE CO.
• Court: Wisconsin Supreme Court

111 Wis. 443

87 N.W. 461

WISKIE

v.MONTELLO GRANITE CO.

Supreme Court of Wisconsin.

Oct. 15, 1901.

Appeal from circuit court, Marquette county; Lawrence W. Halsey, Judge.

Action by Adam Wiskie against the Montello Granite Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action to recover damages for personal injuries sustained by the plaintiff December 17, 1900, while in the employ of the defendant in its granite quarry, by reason of the unexpected explosion of a powder blast beneath a rock on which he was at work at the time. Issue being joined, and trial had, the court, at the close of the testimony on the part of the plaintiff, granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal. The plaintiff testified to the effect: That he was 36 years of age. That he had worked for the defendant 3 years, most of the time drilling holes in the rock with steam or air drills. That he was so at work Friday, December 14, 1900, when Pender, the defendant's foreman, told him to bar some stone loose, and put chains on them, and get them ready for the derrick. Two other workmen (C. & G.) were working on another stone glutting it,--raising it up from the bottom, and driving it off from the main body of the rock. Gluts are made of iron or steel, and of different sizes,--from one to two inches in diameter; and they run to a point,--wedged shape. To glut stone out, the men drill the stone out and crack it. Then Pender had C. & G. put gluts in and glut it out; one to glut from the top, and the other from the bottom. They had glutted from the bottom, and raised the stone an inch and a half. The stone was eight or nine feet long, five or six feet across, and six or seven feet thick. The seam was eight or nine feet long, six or seven feet deep, and half an inch wide. Late in the afternoon of Friday, Pender stopped C. & G. from glutting, and told them that they could not get the stone out in that way; that he would get it out for them. Pender went after the powder, and sent him for a lump of clay. When they returned, Pender went to pouring the powder from a tin can, holding about a pint, into the seam or crack, and continued until he had emptied four cans into it, and then told him to get the kerosene, that the powder was running away. That he got the kerosene, and Pender took the can, and poured it into the crack. He then poured another can of powder into the crack, and some more kerosene, and followed it by two more cans of powder. Then it filled clear to the top with powder, and Pender then put in his fuse, and sent him for dirt. He brought a shovel of moist sand, and Pender put it on the top of the powder. Pender then packed the dirt with his hands all along the top of the crack, and told C. & G. to get some wood to put on top, and told him to take the tools away from the front of the blast. After those things were done as so directed, Pender ordered the men out of the hole, and then Pender gave the signal to blow the horn, to let people know there was going to be a blast. The crack into which the powder was so put extended from the top to the bottom of the rock, and was one half inch wide clear down to the bottom. When the signal was so given, C. & G. and Pender and himself came down to the corner 12 or 13 rods away from the blast. When the blast exploded, he was looking down the street, paying no attention, and did not hear the report. That Pender first hollered “All over!” which meant that the blast had gone off. When they returned to the hole, Pender told him to bar and chain stone again, and told C. & G. that they would “have to cut that stone again,” and with his chalk and line Pender marked where they were to cut the stone. The two ends of the stone were free, and the side against the rock was separated from it about half an inch. That was the width of the crack. C. & G. drilled across the stone from the seam to the front of the stone, and while they were doing that he continued getting out stone with a crowbar, and chaining them, until the bell rung, and they all quit for the night. The next morning (Saturday) Pender said, “We won't work to-day; it looks like a bad day;” and so he went home, and did not return until Monday morning, December 17, 1900. Pender then said that C. was not coming out that morning, and that he should help drill that line which Pender had marked on Friday. That he then went to work on that line and on the stone they had been glutting out. The holes were drilled about two inches deep, and three or four inches apart. The wedges were put in and the stone broken by G. The stone was drilled from the free end. The piece drilled off was four feet long. After the stone was broken, Pender told him to take the strike hammer, and go and drive the gluts where C. had been drilling on Friday. The powder had been poured in right near those gluts,--poured down from the top of the stone. He took the strike hammer, and went there to drive on the gluts while G. was driving on the side. That while so driving the explosion went off, and made him totally blind. He then heard Pender say, “Oh, God! I supposed that the rain soaked the powder out.” That when the blast so went off Pender was about four feet away from him. The explosion was loud. The powder came right from the top where he was driving the gluts. That G. and he were striking at about the same time; he on the top, and G. on the side. After the explosion G. led him away to the doctor's office, and it was about seven weeks before he could see, and during the time suffered a great deal of pain. He was hired by Pender, and received $1.75 per day. Pender ordered the men about in the quarry. No one else had anything to do ordering the men in the quarry. Pender attended to the placing of the blasts and putting in the powder at all times. He never handled the powder, and did not know anything about placing blasts. That he did not know anything about there being powder in there when the blast went off the second time. Pender did not do any glutting, and did no glutting on this rock. On cross-examination the plaintiff testified to the effect: That he had been employed by the former owners of this same quarry, and had so worked for them 11 or 12 years. That he had been working in this quarry altogether for about 14 years. That during that time he had been doing general work, covering everything, except handling powder--blasting. Pender was the foreman under such former owners. They had used seam blasting in the quarry ever since he first started to work there, and Pender handled the powder during all that time. It was usual for Pender to have somebody get sand, dirt, powder, and oil for him. He would call for it. This rock was drilled first and cracked. That it very often happened that a rock was drilled and cracked, and then a seam blast put in to blow it out. That that had been done on rock on which he was drilling. Whatever Pender called for, he would get. He never knew of an occasion before when a blast failed to move the rock. That this was the first time he ever saw that occur. At the time of the explosion Pender was giving orders. Just before, he was doing nothing. His work on Friday was 10 or 12 feet from the rock. On Monday he examined the rock to see the position of the gluts, and he was sure they were not put in after the blast on Friday, but were put in before the first blast, and remained there. He saw them after the first blast, but did not examine the seam to see whether it was wider before than after that blast. That it seemed to be about half an inch wide, as before. He did not use the steam drill Monday morning because Pender ordered him to use the hand hammer. He had attempted to glut off rocks as large as that before. It looked to him as though the bottom of the rock was flat,--but he could not see under it, and did not look. He had seen Pender pour kerosene oil into a seam blast before, but did not know how many times. He did not know whether it was a usual blast in comparison with blasts he had seen Pender put in before, nor whether the powder was larger or smaller grain. The powder was black fine powder. There was blasting in the quarry two, three, or four times a week; sometimes two, three, or four times a day. He saw smoke at such times, but paid no attention to it. From what he saw and what occurred on Friday, he thought the powder had all exploded, and it did not occur to him that there might be some powder unexploded. He supposed the blast had gone off from the smoke. Such is a general outline of the circumstances under which the plaintiff was injured, as detailed by himself. Some of his testimony was corroborated by three other workmen in the same quarry. There were also two expert witnesses on the part of the plaintiff whose testimony tended to prove that the seam blast, as prepared or charged by Pender on Friday, was improper; that the usual and customary way, and in fact the only proper way, is first to make a base for the powder by pouring sand into the crack or seam so as to confine the powder to certain limits, and then put in the powder, so that the explosion will ignite all the powder; but that, in case the explosion is only partial, then more sand should be poured into the seam, so as to cover up the powder in there, and make a new base for the second charge of powder to be exploded, and that it is dangerous to drill or glut the rock until after all the powder which had been put in had been exploded; that the soaking of powder by a common rain will not entirely destroy the explosive effect of powder, as it is glazed over with graphite so as to resist the water, although...