Harper v. Iola Portland Cement Co. , 76 Kan. 612 ( 1907 )


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  • The opinion of the court was delivered by

    Burch, J.:

    The defendant operates a stone-quarry in connection with its cement manufactory. The quarry presents a face of solid rock some twenty feet in height. Rows of holes are drilled some distance back from the edge and loaded with dynamite, which is exploded with a battery. These “battery shots” disengage irregular fragments of rock, numbers of which are too large to be loaded at once into cars and transported to the crusher and which must therefore be reduced. Many cannot be broken by use of the sledge, and these are blown to pieces by dynamite, the holes drilled for the purpose being called “pop holes” and the explosions being called “pop shots.”

    *613Frequently a battery shot does not discharge all the battery holes, and fragments of rock thrown into the pit of the quarry will contain highly dangerous charges of unexploded dynamite.

    The plaintiff was an employee of the defendant, and his duty consisted in drilling pop holes. While he was so occupied he exploded the charge of an unshot battery hole and was injured. He sued the defendant for damages, claiming a violation of the duty to furnish him a reasonably safe place to work. The defendant denied that it was negligent, and pleaded contributory negligence and assumption of risk. A demurrer to the plaintiff’s evidence having been sustained, he prosecutes error.

    There was sufficient evidence to go to the jury that at the time of the accident the plaintiff’s work was confined to the drilling of pop holes in fragments of rock which had been dislodged by battery shots, and had nothing to do with the drilling, loading or shooting of battery holes; that under regulations adopted by the defendant governing work in the quarry it was the duty of the employee who loaded and shot battery holes to report the number loaded to the quarry foreman ; that the foreman or the shooter, or both, counted the explosions as they occurred to ascertain if all loaded holes were shot; that if the charge in any hole failed to explode it was the duty of the shooter to find it and explode it, and if he could not explode it at once to mark it, tell the workmen of its location, and do so at the next shooting; and that the plaintiff had been advised of this rule and was working in reliance upon it when he was injured.

    Further evidence was adduced to show that the plaintiff had no knowledge of the existence of the unexploded charge which injured him and had no way of determining whether the rock upon which he undertook to work was loaded. It looked like any of the others there. Its surface was covered with a coating of ice, into which pieces of stone were frozen, and the *614quarry was not lighted sufficiently to make visible indications of a hole having been drilled in the rock if any had existed.

    Under this evidence the case is in all respects identical in principle with that of Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856.

    The commonest kind of humanity required that pop drillers should not be sent unwarned to drill into rocks containing concealed charges of dynamite, and the law clearly required the defendant to adopt some kind of a regulation for their protection. If unexploded charges were readily discoverable by drillers of ordinary capacity perhaps they might be hired with the understanding they should locate such perils themselves, but even then the employment would be harsh, •if legitimate, and not the kind in which plaintiff was engaged. The defendant expressly undertook to make the plaee where plaintiff was required to work safe by the adoption of the regulation described, and an implied agreement to assume the risk guarded by the regulation cannot be recognized.

    “There is no room for any implied agreement of the employee to assume the risk of danger in the presence of an express regulation upon the subject established by the pit-boss for the very purpose of protecting him.” (Brick Co., v. Shanks, 69 Kan. 306, 309, 76 Pac. 856.)

    For the reasons stated at length in the case just cited the plaintiff was not a fellow servant of the employee who was charged with the duty of. discovering unexploded charges of dynamite, marking them, and warning other workmen of their location. No matter to whom the task might be assigned, or what the rank or grade of his service, the duty was one the master was bound to fulfil, and failure to do so- constituted actionable negligence.

    Although the plaintiff was, as he’.admitted, familiar with the quarry and with the details of the various kinds of work performed there, his conduct, under *615the circumstances stated, was not such as to charge him with contributory negligence. In other respects a cause of action was established, and the case should have been submitted to the jury.

    (93 Pac. 343.)

    The judgment of the district court is reversed and the cause remanded.

Document Info

Docket Number: No. 15,179

Citation Numbers: 76 Kan. 612, 93 P. 179, 1907 Kan. LEXIS 302

Judges: Burch

Filed Date: 11/9/1907

Precedential Status: Precedential

Modified Date: 11/9/2024