Schnieder v. Raymond ( 1927 )

The jury might reasonably have found these facts: The defendant Raymond employed plaintiff to do the cement and stone work on the cellars of two of the houses of himself and Davenport, and after he had worked at this about a month transferred him to work on certain ditches and while at this work it became necessary to do some blasting with dynamite, and while so working he was under the direct supervision of Raymond, who gave him the material for loading the blast hole; upon plaintiff telling him the depth of the hole Raymond cut off the fuse to a length of twenty-four inches which left the fuse only eight inches above the top of the hole. On the afternoon before Raymond soaked the fuse in kerosene oil. On account of the heavy wind the fuse was difficult to light with a match and by Raymond's order plaintiff used a torch with which he lit the fuse, and Raymond, who stood beside him, gave him a tap, saying to him, when the wind blew so hard, "Hold your light closer to the fuse," and plaintiff obeyed, standing close to the fuse. And then Raymond said, "It is all burned away, it looks as though it was out," and then in five or six seconds plaintiff was injured in consequence of the explosion. This method of exploding a charge of dynamite by fuse is not safe for an inexperienced man without instruction; the use of a battery for blasting is the safe and approved method. If a fuse does not set off the blast within a reasonable time, no examination should be made of the fuse for twelve hours. Soaking the fuse in oil was not a proper method. One supervising a blast should not permit the person touching it off to stand within reaching distance of the fuse under any circumstances; nor should he with a delayed fuse within one or five minutes, order one of his employees to retouch the fuse.

The evidence in behalf of the defendants contradicted practically all of these facts, but none of it reaches the point of creating a belief in the improbability of the evidence offered by the plaintiff. None of it requires us to hold that the jury could not reasonably have reached the conclusion they did upon one or all of the issues of the defendants' negligence, — in changing plaintiff from a nondangerous to a dangerous work without giving him any adequate instruction, in failing to provide proper appliances with which to perform the work, in seeing that only such were used, in failing to furnish proper supervision for the conduct of the work, and in ordering him to carry on the work and to hold the flame from the torch closer to the fuse under conditions which were extremely dangerous. If the jury found the facts in accordance with the evidence offered by the plaintiff, it would follow that the defendants owed a duty to him to provide suitable appliances, which they had not done, Worth v. Dunn, 98 Conn. 51, 118 A. 467; that the plaintiff did not assume the risk from the failure of the defendants to provide suitable appliances,Belevicze v. Platt Bros. Co., 84 Conn. 632,81 A. 339; that he did not assume the risk arising from his transfer to a more hazardous occupation without being instructed as to the especial dangers of the new work, Baer v. Baird Machine Co.,84 Conn, 269, 79 A. 673; and that he could not have contemplated and did not assume the risk which arose from instructions to hold the flame of the torch closer to the fuse.

The principal ground relied upon by the trial court in setting the verdict aside was that the plaintiff's own negligence contributed to the injuries he suffered. Whether the plaintiff had acted as a reasonably prudent man in doing this work and in obeying the directions of his master, who was in the immediate supervision of this work, were questions of fact; it cannot be held as matter of law that the plaintiff was negligent, or that his negligence directly and materially contributed to his injuries, since these issues depended on whether he exercised reasonable care under the many varying circumstances of the case. Farrell v. WaterburyHorse R. Co., 60 Conn. 239, 21 A. 675, 22 id. 544; Steinert v. Whitcomb, 84 Conn. 262, 79 A. 675.

The defendants further support the action of the trial court in setting aside the verdict by their claim to have established their plea that the parties made a settlement and the plaintiff executed a release of all claims and demands. The plaintiff offered evidence tending to prove that he had executed the release while in the hospital suffering from this accident and when unable to read it and in reliance upon the truth of the representations of defendants that it was merely for the purpose of relieving him from paying the doctors and hospital nurses, and in ignorance that it was a release of the defendants from all claims and demands for damage from his injuries. The plaintiff further claimed to have proved that the inadequacy of the consideration for the release, $577, of which only $144 was for wages, was so unconscionable, coupled with the fact that Raymond knew, when he obtained the release, that plaintiff's eyesight was seriously impaired and the sight of his right eye wholly destroyed by this accident, as to justify the conclusion that the release was obtained under circumstances constituting fraud in fact. The verdict of the jury can only indicate that they found the release to have been made under the circumstances as claimed by the plaintiff; if they so found, it was their duty to disregard the release as a valid defense. If they so found, it was inevitable that they draw an inference from its making unfavorable to the defendants upon the main question of their liability. The finding of the circumstances surrounding the making of the release were facts within the province of the jury to find and upon the evidence for them, and not for the court.

There is error, and the cause is remanded with direction to the Superior Court to render judgment upon the verdict.

In this opinion the other judges concurred.