Dawkins v. Granite Co. , 74 S.C. 419 ( 1906 )

June 26, 1906. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained by the plaintiff through the negligence and wantonness of the defendant. The allegations of the complaint material to the issues involved are as follows: That the plaintiff was on the 6th day of September, 1901, employed by the defendant as a workman, and while engaged in removing a rock for said defendant a charge of dynamite in said rock exploded by which he was seriously injured. The specifications of negligence and wantonness are as follows:

"(1) In having said charge of dynamite in said rock or stone without informing plaintiff of its presence, although the fact of its presence was known to defendant and unknown to the plaintiff.

"(2) In causing and directing plaintiff to cut and break said stone with said dynamite concealed therein, without informing plaintiff of its presence, thereby causing the said explosion and said injury to plaintiff.

"(3) In not giving plaintiff a safe place in which to work, but, on the contrary, in putting him to work at said rock or stone containing said deadly charge of dynamite, which exploded while plaintiff was discharging his duty to the defendant, the presence of which charge of dynamite was known to the defendant, or should have been known, and could have been known by it had it made proper inspection of said stone before placing plaintiff at work thereat."

The defendant denied the material allegations of the complaint and set up the defenses of negligence, contributory negligence and assumption of risk on the part of the plaintiff.

At the close of the plaintiff's testimony the defendant made a motion for nonsuit, which was refused.

The defendant did not offer any testimony. The jury rendered a verdict in favor of the plaintiff for $1,000.

The defendant appealed upon exceptions which will be set out in the report of the case.

There was testimony to the effect that at the time the work was rendered dangerous, and, also, that at the time the injury was sustained, the plaintiff was a servant of the defendant. He was foreman of a squad of twenty-three laborers, whose duty it was to break up and remove blocks of granite after they had been blasted from the solid rock. The implements used were hand tools, such as steel wedges and sprawls. These employees worked under the direction and control of Dan Smith, who had charge of the blasting, and was the "general boss" of the common enterprise. In a stone ten feet long, four feet high and six feet wide, upon which the plaintiff was at work, there was a "jumper" hole in the center thereof, which contained a dynamite cartridge that had failed to explode on the previous day, when the rock was blasted by those acting under orders of Dan Smith. The plaintiff knew that this hole had been bored into the rock for the purpose of receiving a cartridge; that the cartridge at times failed to explode; and that there was nothing which indicated to him in this instance that the cartridge had exploded, thus showing that he had notice of the danger although he was not aware of the actual fact that the cartridge had failed to explode. In blasting, a number of holes were drilled in the solid rock and dynamite cartridges placed in them, with fuses of varying lengths, so that each cartridge would make its separate detonation; and these reports when counted would determine whether any of the cartridges had failed to explode. There was no testimony that the count was kept in this instance. Dan Smith had left the grounds before the blasting took place on the afternoon preceding the injury. There was no evidence of inspection by Smith next morning before giving orders for plaintiff's squad to work on the rock.

It will thus be seen that the vital question in this case is whether there was testimony tending to show that the danger was hidden or unusual. Our interpretation of the testimony is that while it shows that cartridge was concealed, nevertheless it likewise shows that the danger arising from its concealment was known to the plaintiff; that it was created by the negligent act of a fellow-servant; that it was incidental to the work and arose during its progress; and that it was a consequence naturally and reasonably to be anticipated from the nature of the employment.

It was error, therefore, to refuse the motion for a nonsuit. This conclusion is sustained by the cases of Martin v. RoysterGuano Co., 72 S.C. 237, and Biggers v. CatawbaPower Co., 72 S.C. 264.

The views which have been expressed practically dispose of all exceptions.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed and the case remanded for a new trial.