Wiesner v. Bonners Ferry Lumber Co.

ON REHEARING.

MORGAN, J.

Both appellant and respondent moved for a rehearing. Their motions were granted and the case has been again submitted to us for decision.

Counsel for appellant, argues that, in view of our decision heretofore rendered, we should have directed the trial court to dismiss the action. This contention is based upon a statement in the opinion to the effect that appellant provided a competent servant to give the warning, and that respondent knew the means employed for the purpose of notifying him of the explosions of dynamite and assumed the risk incident to his employment, and upon our decision that, under the facts of this case, where the master used due diligence in *545the adoption of a reasonably safe signal system and used reasonable care to see that it was enforced, his nondelegable duties were complied with, and he could not be held answerable in damages for the injury to a servant caused by the negligence of a fellow-servant in failing to give the proper signal.

It is the contention of respondent that the judgment of the trial court should be affirmed. He urges that the evidence shows that during the time he was employed by appellant prior to the date of the accident he had not been working in the immediate vicinity of where blasts were being exploded, but that the powdermen had worked at a distance of about half a mile from him, and that on the day of the injury appellant changed the place of his employment and that of the powdermen, so that he was required to work within a short distance from where the blasts were exploded and within the danger zone; that he was given no notice and was not aware he was working any nearer than half a mile from where the blasting was to be done, and that he did not, therefore, assume the risk to which he was subjected and which resulted in his injury. It is also urged that it was the duty of appellant to warn respondent that it was about to explode a charge of dynamite in close proximity to him, and that this duty was absolute and nondelegable.

Without entering into a further discussion of the law we will say that, upon a careful examination of the authorities cited by the parties, we have reached the conclusion that if respondent was, for several days prior to the accident, continuously employed at work upon the construction of a road so near to others engaged in the same work, who were using dynamite, as to make it necessary to give him signals in order that he might retire to a place of safety when a blast was to be set off, and if appellant had adopted and used reasonable and proper care to enforce a system of signals for his protection and had assigned to proper persons the duty of giving them, the performance of that duty was a detail of the work, and was not nondelegable, and the failure of such persons *546to give the warning on the occasion of the accident was not the failure of a vice-principal of appellant but that of a fellow-servant of respondent.

If respondent’s contention is well founded in fact, that he had always before the accident been employed at a safe distance from where blasting was done, and that he was removed from there by appellant to a place within the danger zone without any notice to him, or knowledge upon his part, that his new place of employment was near enough to the point where blasts were about to be exploded to render his position hazardous, he cannot be held to have assumed the risk incident to his employment, for he could not assume a risk without the knowledge of its existence.

We do not desire it to be understood that we decide from the record before us that the above stated contention of respondent is or is not well founded in fact. This is a question which should be submitted to a jury, under proper instructions.

We therefore adhere to our former conclusion, and reverse the judgment and remand the cause to the district court, with instructions to grant a new trial.

Sullivan, C. J., and Budge, J., concur.