Bjorklund v. Gray , 106 Minn. 42 ( 1908 )

JAGGARD, J.

In this, an action to recover for personal injuries, plaintiff had a verdict. Several days before the accident of which he complains, other employees of the defendant had charged three holes drilled in the rock with crushed dynamite above the place where plaintiff was injured. Two of the charges exploded. The third was not discharged. It was the unvarying custom in this quarry for the “powder man” to investigate after each blast whether any of the charges had missed. After the explosion he said to the foreman: “We should look after how it was with the blasts, if they had gone off.” The foreman replied that it would be looked after next morning. No such subsequent investigation was, however, in fact made. The drill hole was discovered, and covered with a rock about the size of a law book, to keep it from being filled up. On the day of the accident an employee of defendant, in attempting to drill the hole, which he found not to be deep enough, caused an explosion, whereby a rock was thrown upon plaintiff and produced the injuries‘complained of. Defendant’s final argument, as we understand it, was that the men exploding the dynamite were negligent in not discovering that the ledge contained an unexploded charge of dynamite and were fellow servants of plaintiff.

It is not material to the final result of the case whether the foreman, or the man he directed to do the blasting, in causing the explosion in the third hole, was a fellow servant or not. Defendants owed a duty of inspection, in accordance with their own custom of looking for unexploded blasts. Failure to conform to that custom was initial negligence, for which they were liable for the injury of their employee therefrom, even if the act of a fellow servant contributed to cause the harm. The general foreman was, however, a vice principal. If he be regarded as directing the drilling, this case would be ruled by Carlson v. James Forrestal Co., 101 Minn. 446, 112 N. W. 626, and Stahl v. City of Duluth, 71 Minn. 341, 74 N. W. 143. The courts “are also approaching the whole matter from the point of view of the master’s legal duty.” 6 Mich. L. Rev. 265, citing 2 Mich. L. Rev. 79, and showing the similarity between the Carlson case and Peters v. George, 154 Fed. 634, 83 C. C. A. 408.

Affirmed.