Houston v. Culver, Reynolds & Co.

Lumpkin, Justice.

The declaration charges the defendants and their foreman with being negligent. The alleged negligence of Hill, the foreman or boss, consisted in removing the cap from the dynamite cartridge, thereby rendering it less liable to explode; “in recharging said hole and putting the charge below the said recharge and thus endeavoring to fire off said dynamite” ; in not knowing that the charge of dynamite in the old hole had not been exploded ; and in ordering the plaintiff to drill in said hole. The alleged negligence of the defendants consisted in knowingly employing an unskilled, and incompetent foreman, and holding him out to the plaintiff as competent to direct the work of blasting.

From an examination of the evidence, the substance of which appears in the report, it will be seen that there is no proof that the cap was removed from the dynamite cartridge, or that this was an unusual or improper act in the operation of blasting. Nor is it shown that the method adopted on the second attempt to fire the unexploded dynamite, by putting in a “second bottom,” charging the hole with powder and firing it,- was not proper or would not ordinarily accomplish the desired result. Nor does it appear that Hill neglected any precautionary measure'to ascertain whether the second effort to explode the dynamite had succeeded, or how by the use of proper diligence he could have known that fact. Consequently, to order the plaintiff to drill in the old hole was not shown to be an act of negligence.

As to the alleged negligence of the defendants in knowingly employing an incompetent foreman, there is not a particle of proof of Hill’s incompetency, or of knowledge thereof on the part of the defendants. Such incompetency could not be inferred from his conduct in this transaction, because, as shown above, it was not proved to be in any respect negligent.

*38The evidence only shows that the plaintifi’ suffered a misfortune incident to the dangerous class of work in which he engaged. No one seems to have suspected that the dynamite was still unexploded at the time when the plaintifi was ordered to drill. Hill and Holden differed in opinion as to whether the first firing had sent off the dynamite; but after the explosion of the second charge of powder in the same hole, there appears no reason why either should think that the dynamite still lay there unexploded, not having “gone out at the bottom through the crevices or fissures in the rock,” as Hill believed it had done on the first explosion. The plaintiff', as he alleges in his declaration, objected to drilling near the old hole, not because of any possible danger there, but because he “had been informed that a hole drilled too near to another hole that had been previously blasted was liable to be defective for the purpose of the blasting by reason of fissures liable to be made by the prior blasting in the rock.”

There being no evidence of negligence on the part either of the foreman or of the defendants, the judgment of nonsuit was proper. The court below rested its judgment on the ground that the plaintiff and Hill were fellow-servants, and the defendants were not liable for the negligence of Hill. The plaintiff contends that Hill was the defendants’ “general superintendent,” standing in their place and representing them. The declaration calls him by the less pretentious designations of “foreman” and “boss,” and it is not clear from the evidence that he was anything more at the time of the injury. It may be that the court rightly granted the nonsuit for the reason above stated. "Whether this is true or not, on the evidence adduced by the plaintiff there could be no recovery. Judgment affirmed.