Stanich v. Pearson Mining Co. , 122 Minn. 29 ( 1913 )

Hallam, J.

Defendant is engaged in the operation of an underground mine. On June 27, 1911, plaintiff was in defendant’s employ as a miner. Tie and one Lakovich were working in a drift of the mine. They had each bored a small hole horizontally into the breast of the drift and then prepared a “shake blast,” that is, a small blast, to make the farther end of the hole larger so that they could insert a bigger quantity of powder for a big blast. The process of shake blasting is to adjust a fuse and cap to a stick of dynamite, then light the fuse. While the fuse is burning its way to the cap and dynamite, the operator has time to get to a place of safety. Plaintiff and Lakovich were each “shaking a hole.” Plaintiff’s hole was four or five feet from the ground; Lakovich’s was about two inches from the ground, each hole running horizontally into the breast of the drift. Both were to light at the same time. Plaintiff adjusted his charge and lighted his fuse. Lakovich announced that he could not light his, but both ran to a cross-cut and turned a corner, when one explosion took place. Plaintiff again asked Lakovich if he had lighted his fuse. Lakovich answered, “No, it is not lit at all.” They waited, however, for five minutes by the watch, because they “thought maybe it did light.” They then returned and went to Lakovich’s hole first, and when plaintiff got close to it the blast exploded.

At the close of the evidence defendant moved for judgment notwithstanding the verdict. The motion was denied, judgment entered, and defendant appealed. The motion should have been granted.

Plaintiff alleges several grounds of recovery:

1. It is alleged in the complaint that the defendant neglected to warn, caution or instruct plaintiff as to dangers connected with his work. This is one of the grounds urged on this appeal. The claim is that defendant was negligent is not instructing plaintiff as to the proper length of time to remain away when a blast fails to explode.

An employer is obliged to warn and instruct his employee as to dangers known to him but of which the employee has no knowledge. But an employer is not required to give instructions as to matters within the knowledge of the employee. Wendler v. Red Wing Gas & Electric Co. 92 Minn. 122, 127, 99 N. W. 625. There is no intimation in the evidence that plaintiff was not fully informed on this subject. He had worked in this mine 44 days. Previously he had worked in other mines for several months. In all these mines he had used powder, fuses and caps. He said, himself, that he thought at the time he was a good miner. There was no testimony offered in his behalf as to the length of time it was proper to stay away from the blast when it failed to explode. At the close of plaintiff’s case there was no intimation that any such ground of recovery was relied upon. On direct examination of one of defendant’s witnesses, testimony was elicited that plaintiff should have remained away 15 minutes. The purpose of the testimony is not clear. Probably it was elicited for the purpose of showing contributory negligence. Plaintiff has seized upon this bit of testimony and now seeks to make it the basis of a neglect of duty to warn and instruct him as to the dangers of his work. We hold that the evidence wholly fails to make the proof necessary to such ground of recovery.

2. The next contention is that the fuse furnished plaintiff was too short. Both fuses were the same length. If Lakovidh’s fuse had burned out too quickly, there would have been force in this contention. But it burned longer than plaintiff anticipated. This was doubtless due to the fact that the powder was not continuous in the fuse. It is not claimed that this fact constituted a defect in the fuse. Plaintiff’s counsel contends that if plaintiff’s fuse had been longer he might have stopped to see if Lakovich had lighted his fuse before running to a place of safety, after lighting his own. But there is no evidence on the part of plaintiff or any of his witnesses that this practice was ever followed or to sustain any assumption that plaintiff would have followed it had a longer fuse been used. It clearly appears without contradiction that this fuse was of the length always used for this work, and it further appears that if any operative desired a longer fuse, he might obtain from the powder man a fuse of any length.

The evidence is insufficient to sustain recovery on the'ground of defect in the fuse.

3. It is further contended that the accident was due to the incompetency of Lakovich, that he was not a competent workman and that defendant had notice of that fact.

Lakovich was a fellow servant of plaintiff. Defendant was not responsible for an injury due to his unfitness, unless it had knowledge or notice thereof. The evidence on this subject is as follows: Plaintiff testified:

“I seen him one day when he was carrying fuse, caps and dynamite in his hand, and- carrying it along, and when he come to the place where we were working, he took and threw it down, and I was afraid that I might get hurt or some accident happen to me the -way he used it. * * * I told tbe boss tbe time I seen this and after that he never done it.”

He said that tbe “boss” or foreman told bim be would give bim a new partner as soon as be could. Plaintiff further testified that on tbe day before tbe accident be spoke to' tbe “boss” again and “be told me he would give me a partner tomorrow, or tbe next day, or two or three days afterwards.” If this accident bad been caused by tbe careless handling of dynamite on tbe part of Lakovicb, plaintiff’s contention would have considerable force. Llis testimony constitutes some evidence of Lakovicb’s carelessness in this particular and of defendant’s notice thereof; but tbe accident did not result in any such manner. On this occasion Lakovicb performed bis work properly. He did not know that be bad lighted bis fuse, but there is no evidence that bis manner in lighting tbe fuse or bis failure to ascertain that it was lighted was due to any carelessness or incompetency on bis part, and there is no evidence that be was incompetent for this class of work.

But even if these facts disclosed incompetency, it was not tbe incompetency of which plaintiff bad complained. Tbe rule is well settled that, to render an employer liable because of negligence in retaining in bis employ an incompetent fellow servant, it must appear that tbe accident was caused by tbe particular incompeteney alleged. Pfudl v. F. J. Romer Sons, 107 Minn. 353, 120 N. W. 302; 26 Cyc. 1302. There is here not the slightest connection shown between the failure of Lakovicb to ascertain that bis fuse was lighted and bis manner of handling sticks of dynamite of which plaintiff bad complained. There can be no recovery on tbe ground of any incompetency of Lakovicb of which defendant bad knowledge or notice.

This disposes of tbe grounds on which this action is based.

Tbe judgment appealed from must be reversed, with direction to enter judgment notwithstanding tbe verdict.