Kelly v. Cable Co. , 13 Mont. 411 ( 1893 )

De Witt, J.

As to instruction 21, it is to be observed that the testimony on this trial differed in some respects from that on the trial which resulted in the appeal reported in 7 Mont. 70. The record in this court on that appeal showed that Savery, the superintendent, testified that he instructed Showers, the foreman, “that as an extra precaution I wanted him at every blast, if possible, to be present to direct the men, and after the explosion to see that every hole had exploded.” This court on the first appeal took the view, apparently, that the superintendent instructed the foreman, and that it was the foreman’s duty to be personally present at every blast, and to personally oversee it. It was with this view, doubtless, that this court said on that appeal: “The instructions asked by the plaintiff virtually exclude the defense of the negligence of a fellow-servant from the consideration of the jury, and this view of the matter at issue seems to be borne out by the evidence.” As we understand that opinion, the court considered that the defense of the negligence of fellow-servants was out of the case, for the reason that the evidence was that it was the foreman’s duty to be personally present at every blast. Now, on the third trial, which resulted in this present appeal, Savery, the superintendent, testified.: “I never gave Showers any such absurd instructions as to be present, if possible, at the discharge ■of every blast, and I never testified before to any such thing. I cannot recollect that I testified before that I had given Harvey Showers instructions, as an extra precaution, to be present at every blast.” In this testimony Savery was contradicted by the stenographer who took the testimony on ihe first trial. The stenographer testified that Savery’s evidence •on the first trial, as to this point, was as above noted. This conflict between Savery and the stenographer went to the jury for their solution. Therefore there was evidence on this trial, as it seems there was not on the first trial, that the foreman was not instructed to be present at every blast. Savery testified on this trial: “ I don’t think it is possible that I ever gave Showers instructions, as an extra precaution, to be present at every shot, and see if it had been discharged, nor did I ever testify that I had done so. It is the duty of the foreman to oversee all the blasting, but not to the extent of informing himself as to what each man was doing.” Furthermore, on this trial the testimony was that it was the duty of miners to see that the shots all exploded, and that the method of ascertaining this fact was to count the reports when the explosion took place. A witness, Owen McBride, testified that he was a miner, working, on the day of the accident, in the crosscut where Kelly was injured. He put in the holes, loaded, and fired them. He said that, when he counted the reports, there were two reports short. He waited some little time, went in and examined, found the ground all broken, and could see no missed holes. The smoke was thick, and he could not see well. When he could look, he saw no signs of missed holes. This man was working on the day shift, and Kelly went on at night to clear up the debris from the day’s work. This witness, McBride, says further: “ I saw Kelly at supper-time, between the mill and the boarding-hoüse. He asked me how I was getting along, and I said not good. I told him there were two reports short in the crosscut, but I had found the ground all broke, and couldn’t see any missed holes.” It also aDneared in evidence that sometimes a piece of loose powder gets into the debris by being dropped, or coming from a “ cut-out hole,”' and that such a piece could be exploded by the blow of a pick. Under this testimony, we are of the opinion that instruction 21 was appropriate on this trial, however true it may have been that there was no evidence on the first trial which would allow a jury to consider the defense of the negligence of a fellow-servant. We think that the evidence on this trial did not shut out the consideration of such defense. There was-evidence that it was not the foreman’s duty to be personally present at every blast. There was evidence, to be sure, tending to contradict the witness testifying on this point, but that evidence and its contradiction were all before the jury. There was also evidence that it was the duty of the men to see that the holes all exploded. There was evidence that one of the miners who was doing this blasting thought there might be two missed charges, and informed Kelly of this. Under these facts, instruction 21 fairly states the law of the defense of the negligence of fellow-servants. The closing paragraph of that instruction leaves it to the jury to find that the accident was due to the negligence of the foreman, who was a representative of the principal (the defendant).

The appellant complains of instruction No. 3, that it is a direct statement by the court that the men engaged in blasting were fellow-servants of the plaintiff, and that for their negligence the defendant is not liable. This construction of the court’s language might be correct if those two or three lines upon that subject were taken out of the instruction and stood alone; but, with the whole instruction before us, it is clear that the court simply stated to the jury what the defendant claimed.

As to instruction No. 1, appellant contends that this “ misstates plaintiff’s position, in that it tells the jury that the plaintiff did not claim ‘ that the foreman, or any of the agents or employees of defendant, were incompetent’; whereas the evidence affirmatively shows that they were incompetent in the matter of examining for and discovering missed charges, and also that their manner of discharging blasts was incompetent, in that it tended to make it impossible, or very difficult, to discover missed charges.” (Quoted from appellant’s brief.)

In examining the complaint we do not find that there was any charge made that the foreman, agents, or employees were incompetent. It is charged that they were negligent and careless. Those terms are not convertible. The same observation is true of evidence. The effort of plaintiff was not to prove that the defendant’s agents were incompetent, but rather that they were careless and negligent. If persons were careless and negligent, that is not proof that they Avere incompetent. A competent person may be careless; an incompetent person may, as far as his knowledge or skill goes, be careful. We are therefore of the opinion that there Avas no error in this instruction. Having reviewed the errors claimed by appellant, we conclude that none of them can be sustained, and the judgment is therefore affirmed.

Harwood, J., concurs. Pemberton, C. J., having been counsel in this case, did not participate in the hearing or determination thereof.