Seymour Dwight Thompson.

Commentaries on the law of negligence in all relations online

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a hole drilled in a stone quarry, it is a question of fact for the jury
whether the indications that the charge had exploded were such as to
justify the superintendent in deciding to drill the hole as he did, by
striking a drill held upright in the hole, instead of removing the
tamping in some other way. 9



•Post, § 4615.

7 Post, | 4618. The observations
In the text are illustrated by a de-
cision where the plaintiff's intes-
tate was killed by an explosion
at defendant's powder factory,
where he was employed as en-
gineer. There were two explo-
sions, in one or the other of which
the mixing-house, the adjoining as-
sembly-room, a well where nitro-
glycerin was kept, and the two
gun-cotton dry-houses were de-
stroyed. It was not shown what
was included in either explosion,
except that the origin was in the
mixing-house, nor was it shown in
which explosion, or by what direct
means, the deceased was killed. It
was conceded that, if the deceased
was killed as a result of the ex-
plosion of the mixing-house, there
could be no recovery, he having as-
sumed that risk. Assuming that
the defendant was negligent in
storing the nitroglycerin and gun-
cotton so near the other buildings,



still a verdict for plaintiff could
not be sustained ; since, where there
was nothing to show whether de-
ceased was killed by an accident
for which defendant was liable, or
by one for which it was not, there
could be no recovery: Craig v. Laf-
lin Ac. Powder Co., 55 App. Div.
(N. Y.) 49; s. c. 67 N. Y. Supp. 74.

•Ohio Valley R. Co. v. McKin-
ley, 17 Ky. L. Rep. 1028; & c. 33 S.
W. Rep. 186 (no off. rep.).

9 Malcolm v. Fuller, 152 Mass.
160; s. c. 25 N. E. Rep. 83. There
seems to have been no indication
at all that the charge had explod-
ed. A charge near by did explode,
but the tamping in the hole in ques-
tion was not disturbed. The super-
intendent assumed that the charge
ha£ exploded and passed off
through a crevice in the rock,
which was seen to connect the two

holes. Evidence that the

proprietor of a quarry, to whom an
experienced employs had applied
for instructions as to what to do

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4 Thomp. Xeg.] duties and liabilities of the master.

§ 3923. Subsequent Explosion of Unexploded Blast. — It has been
held that, the danger from "missed shots" being incident to the work
of drilling and blasting in mines, it is not the duty of the master to
make inspections for missed shots after the firing of each blast, but
that it is a duty resting upon the miners themselves. 10 The shift-
boss of a mine was not deemed negligent in failing to notify a miner,
ordered to go to blasting in a particular place where there were un-
exploded blasts, that there was an unexploded hole, with no wire pro-
truding therefrom, where he believed that there was a wire from all
unexploded holes, and had no reason to believe otherwise, and the wire
was there when he last saw the hole. 11 Where, in an fcction for in-
juries caused by an explosion of dynamite, there was evidence on
which the jury would be warranted in finding that defendant's super-
intendent instructed an employ^ to unload a hole, in which was an un-
exploded charge of dynamite, with an iron spoon; that such method
of unloading the hole was negligent ; that the explosion which caused
the injury occurred while the hole was being so unloaded; and that
the superintendent did not instruct plaintiff, who was working near



with an unexploded and frozen
charge of dynamite, referred him
to anotner workman of large ex-
perience in such matters, who told
him to thaw the dynamite with hot
water, and let it thaw out gradu-
ally, and that after doing so the
employe, without any further direc-
tions, but apparently relying on
his own experience, attempted to
remove the charge with an iron
spoon, when it exploded and he was
killed, — is insufficient to show neg-
ligence on the part of the employer;
there being no evidence that the
directions given were improper or
that he asked for or needed or re-
ceived any further directions:
Welch v. Grace, 167 Mass. 590; s.
c. 46 N. E. Rep. 387. A master is
not guilty of personal negligence
rendering him liable for injuries
to an employ6 from an explosion of
a blast which he was justified in
believing had been before exploded,
because he sent the employe to
work about the hole, from which the
tamping was being removed, and
sent another employe who had su-
pervision of the work to another
place, although the latter was ap-
parently reluctant to leave the hole,
where it did not appear that his re-
luctance to leave was owing to any
fear that there was danger in drill-,

172



ing out the hole, but rather that he
wished to remain in order to finish
the work quickly: O'Neil v.
O'Leary, 164 Mass. 387; s. c. 41 N.
E. Rep. 662. A servant, injured
while blasting, alleged that he at-
tempted to clean out an old blast-
ing-hole with an iron scraper, and,
being unable to do so, inserted a
steel tamping-bar, and struck a con-
cealed and unexploded charge
which caused the injury. Defend-
ant had worked in the quarry for
twenty-five years, and no unexplod-
ed charge had ever been found be-
fore, and one of the defendant's
positive requirements was to leave
no unexploded charge in the rocks.
The hole in question had been
charged three times; the last one
about the week before, and the
charge entirely blown out. It was
shown that when a hole was
charged for blasting it was filled to
the top, or nearly so, with sand.
It was held to show, as matter of
law, that defendant was not guilty
of negligence: Lanza v. Legrand
Quarry Co., 115 Iowa 299; s. c. 88
N. W. Rep. 805.

"Browne v. King, 100 Fed. Rep.
561; s. c. 40 C. C. A. 545.

"McMahon v. Ida Min. Co., 101
Wis. 102; s. c. 76 N. W. Rep. 1098.



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DUTY TO PROVIDE SAFE PLACE IN WHIC^ TO WORK. [2d Ed.

by, and who had nothing to do with the use of dynamite, to go away
while the hole was being unloaded, but that the superintendent stood
by for a few minutes while the work was being done, and then left, —
a verdict that defendant was negligent was justified, as such acts of
the superintendent were negligent, and the injury was not solely due
to the negligence of the employ6 who was emptying the hole. 12 In
another case it appeared that a series of holes had been drilled in
rock, charged with dynamite, and exploded by a battery. The plain-
tiff was injured by the charge in one hole, which had failed to explode,
being set off when his companion struck it with his pick. The de-
fendant had told plaintiff to work in the excavation, and that every-
thing was all right. The jury might have found that it was defend-
ant's duty to inspect the place after a blast, and there was evidence
to warrant a finding that no inspection was made. It was held that
the question as to whether the defendant was negligent was properly
submitted to the jury. 18 The death of an employ^ caused by "the sub-
sequent explosion of a blast which failed to explode in the first in-
" stance, is not caused by a defect in the "ways, works, or machinery"
of the employer, within the meaning of a statute making an employer
liable for the death of an employ6 caused by such defects ; the presence
of the unexploded blast being merely a condition of the material upon
which the employ6 was at work, caused by his work, and necessarily
incident to the business. 14

§3924. Failing to Provide Adequate Means of Escape from a
Blast About to be Fired. — In a case speaking upon this question it
appeared that the plaintiff's intestate and another were employed in
defendant's mine at the bottom of a shaft. There was an elevator in
the shaft, and when about to blast they gave a certain signal to the
engineer, who signified that he understood by raising the bucket a
few feet and then lowering it. They then ignited* the fuse, and sig-
nalled the engineer to hoist, and were raised a short distance, and then
lowered, and the engineer shouted down the shaft that the compressed

"Grimaldi v. Lane, 177 Mass. Damite cartridge with his pick,

565; s. c. 59 N. E. Rep. 451. where the injured employ^ knew it

"Hopkins v. O'Leary, 176 Mass. was not uncommon for cartridges

258; s. c. 57 N. E. Rep. 342. to remain unexploded after the use

"Welch v. Grace, 167 Mass. 590; of an electric battery in their dis-

s. c. 46 N. E. Rep. 387. It has been charge, and was aware of the ne-

held that an employer is not liable cessity of caution in approaching

for injuries sustained by an em- the unexploded holes; since he as-

ploy€ engaged in clearing and grad- sumed the risk, though he was

ing the surface of the bottom of a free from contributory negligence:

canal after blasting, from the care- Hutchinson v. Parker, 39 App. Div.

lessness and negligence of a coem- (N. Y.) 133; s. c. 57 N. Y. Supp.

ployg in striking an unexploded dy- 168.

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4 Thomp. Neg.] duties and liabilities of the master.

air by which the elevator was operated was cut off. Deceased's com-
panion climbed up the elevator-rope and escaped, but deceased could
not do so, and was killed by the explosion. The air was cut off by
the foreman, who had full charge of the operation of the time. There
had been an iron ladder in the shaft, which was removed some weeks
before the accident to be replaced by a new chain-ladder, which was
on the ground, and was to be placed in the shaft that day. It was
held that defendant was negligent in failing to provide adequate means
of escape for the men engaged in the blasting. 18

§ 3925. Fall of Stone from the Side of a Quarry Caused by Blast-
ing. — An employer has been held liable for injuries to a laborer, en-
gaged in clearing away the fragments of a rock thrown down by blast-
ing from a clift, by the fall of a stone from the side of the hill, where
a careful and prudent examination by the employer would have re-
vealed the danger. 16

§ 3926. Explosions of Steam-Boilers and their Connections. — The

subject of the explosion of steam-boilers does not necessarily refer it-
self to the duty of the master to provide his servant with a safe place
to work. It also involves his duty to provide reasonably safe ma-
chinery and appliances ; and this last statement is especially applicable
to the subject of railway-locomotive boilers. Nevertheless, for the
sake of getting all the cases relating to this species of injury into one
grouping, they will be treated here without reference to any refine-
ment of analysis. The standard of care which the law demands of the
proprietors of steam-boilers is, in theory, ordinary or reasonable care ; 1T
though, as in other cases, 18 this care varies according to the danger to
be avoided. 19 An employer who keeps a boiler in a building (a car-
horse stable) in which employes are engaged, is in duty bound as to
them to use reasonable care to see that it is kept in a reasonably safe
condition, although such employes are not called upon to work at the
boiler of to do any work connected with it. 20 The practical statement
of this measure of care as applied to locomotive-boilers is, that a rail-

** Alaska United Gold Min. Co. v. and attention necessary on an em-

Muset, 114 Fed. Rep. 66; s. c. 52 C. ployer's part in furnishing a steam-

C. A. 14. boiler is relative to the work to be

"Perry v. Rogers, 91 Hun (N. Y.) done by the boiler and its capacity

243; s. c. 36 N. Y. Supp. 208; 71 N. for harm as well as good: John-

Y. St. Rep. 105. son v. Boston Ac. Min. Co., 16 Mont.

"Texas Ac. R. Co. v. Barrett, 166 164; s. c. 40 Pac. Rep. 298.

U. S. 617; s. c. 41 L. ed. 1136; 17 M Bgan v. Dry Dock Ac. R. Co.,

Sup. Ct. Rep. 707 (ordinary care). 12 App. Div. (N. Y.) 556; s. c. 42

"Vol. I, § 25; ante, § 3772. N. Y. Supp. 188.

19 It has been said that the care

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DUTY TO PROVIDE SAFE PLACE IN WHICH TO WORK. [2d Ed.

road company is not required to adopt extraordinary tests for dis-
covering defects in locomotive-boilers or any of its machinery, which
are not approved, practicable, and customary ; but it fulfills its duty
in this regard if it adopts such tests as are ordinarily in use by pru-
dently conducted roads engaged in like business and surrounded by
like circumstances. 21 A railroad company which requires a competent
and experienced workman and assistant to subject the stay-bolts in a
boiler to the best test known, to discover if they are whole and sound,
is not liable for the death of an engineer from an explosion of the
boiler due to broken stay-bolts, /eight days after such inspection, made
with due care, where a monthly inspection is considered sufficient by
experts and experience! men, and examinations at such periods are
a general rule and custom. 22 A railroad company is not liable for the
death of an engineer from the explosion of a locomotive-boiler because
of an error of judgment in the selection of steel for such boiler by
competent, experienced, skilled, and careful workmen in its employ.' 8
The defendant, a manufacturing company, having discovered that
two boilers purchased by it were defective, notified the seller to re-
pair them. A. was sent with others to make the repairs, with instruc-
tions to fire them up and test them afterwards. After the repairs
were made the defendant's engineer built a fire under the boilers, one of
which exploded and A. was killed. On the trial of an action brought
by A/s administrator, it did not appear at whose request the fire was
started, or why the boiler exploded, nor was any carelessness shown.
It was held that carelessness was not to be inferred, and that the ac-
tion could not be maintained, even assuming- that in building the fire
the engineer acted as defendant's servant ; but the court held that it
would be presumed the engineer acted either at A/s request or volun-
tarily, and not as defendant's agent. 24

a Texas Ac. R. Co. v. Barrett, 166 ing, caused by the blowing out of

U. S. 617; s- c. 41 L. ed. 1136; 17 a plug from a steam-boiler, due to

Sup. Ct. Rep. 707; aff'g s. c. 30 U. its negligently being allowed to be

S. App. 196. in an unsafe condition, unless an

B Chicago Ac. R. Co. v. DuBois, express or implied invitation to eat

56 111. 181; s. c. on second appeal, in the pump-house in the line of his

65 111. App. 142. duty be shown. The fact that they

** Chicago Ac. R. Co. v. DuBois, were given but thirty minutes es-

65 111. App. 142. A railroad com- tablished an implied invitation to

pany which gives its employes eat on the ' premises,— i. e., on the

(section-hands) half an hour for track, where their work lay, — but

rest and refreshment at noon, and not to eat in the pump-house; nor

has allowed them for several years would mere passive permission es-

during inclement weather to eat tablish the latter: Cleveland Ac. R.

their dinner in a pump-house on its Co. v. Martin, 13 Ind. App. 485; s.

line of railway belonging to the c. 41 N. E. Rep. 1051.

company, is not liable for an in- * Olive v. Whitney Marble Co.,

jury to an employs while so eat- 103 N. Y. 292.

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4 Thomp. Neg.] duties and liabilities of the mastee.

§3927. Further of this Subject. — Steam, when confined for the
purpose of furnishing motive-power, being highly dangerous, there is
considerable reason for imposing upon those having the care of steam-
boilers a high degree of diligence, akin to that imposed upon rail-
way companies. This is, indeed, nothing more than ordinary care,
measured by the perils of the particular situation; but, for fear of
misleading juries, courts frequently express the rule in stronger lan-
guage than is usually implied by the words "ordinary care." 25 Tested
by this rule, if a proprietor or employer employs a well-known and
reputable machinist to construct a steam-engine, and, after receiving
it, subjects it to reasonable tests, and while using it subjects it to a
reasonable and continuing inspection, and it nevertheless blows up, in
consequence of bad materials or unskillful work, which was not dis-
coverable by such inspection, the proprietor will not be responsible for
any resulting injury, whether to his servant or to a third person. 26



Rule where Proprietor Directs the Construction of the
Boiler According to His Own Flan. — But the rule is different if a
machine is made according to his own plan, or if he interferes and
gives directions as to the manner of its construction; the machinist
then becomes his servant, and respondeat superior is the rule. 27 More-



■ Jones v. Yeager, 2 Dill. (U. S.)
64. A well-drawn charge to a jury,
stating the obligation of a railway
company to have the boilers of its
locomotives subjected to the usual
available tests, by competent and
skillful machinists, will be found
in Nashville &c. R. Co. v. Jones, 9
Heisk. (Tenn.) 27. In Jones v.
Yeager, 2 Dill. (U. S.) 64, the
reader will find a lucid charge to a
jury, drawn by a very able judge,
in an action of this nature. In an
action for the death of an engi-
neer by the explosion of a steam-
boiler in a mill, the Appellate Court
of Illinois applied the language used
by the Supreme Court of the same
State in a railway case (Columbus
&c. R. Co. v. Troesch, 68 111. 545),
and said that the rule was "dili-
gence. — perhaps high, or the high-
est, diligence": Morris v. Gleason,
1 111. App. 510. Compare Allerton
Packing Co. v». Egan, 86 111. 253,
255; s. c. 18 Alb. L. J. 295; 10 Chic.
Leg. N. 169, where, in a case of this
kind, the court say: "There can be
no question that when a person pro-
vides machinery to be used by his
employes, he cannot be held liable

176



for injury received by the imper-
fection thereof, if such employer
has used a very high degree of care
in its manufacture or selection,
both as to the material and con
struction. This certainly fills all
the requirements of the law, in the
use of diligence as to his employes,
in providing such machinery. We
will not stop to inquire whether in
such cases ordinary prudence or
care in making such selection or
construction is all the diligence re-
quired, as the evidence abundantly
shows that the company, in pro-
viding the machinery in this case,
used a very high, If not the highest,
degree of diligence, and has ab-
solved defendants from all liability
in providing the machinery ."

M Losee v. Buchanan, 51 N. Y.
476; s. c. in full, 1 Thomp. Neg.
(1st ed.), p. 47. See also, ante,
§ 3785; Louisville &c. R. Co. v. Al-
len, 78 Ala. 494; Richmond 6c. R.
Co. v. Elliott, 149 U. S. 266; s. c.
37 L. ed. 728; 48 Alb. L. J. 309; 13
Sup. Ct. Rep. 837.

"Sharswood, J., in Ardesco Oil
Co. v. Gilson, 63 Pa. St. 146, 150.



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DUTY TO PROVIDE SAFE PLACE IX WHICH TO WORK. [2d Ed.

over, in the view of some courts, it is a necessary part of this doctrine,
that, if the master has been careful in selecting his master machinist,
he will not be answerable to the fireman or engineer for an explosion
which may result from a neglect of duty on the part of such master
machinist; 28 and one court has gone farther, and held that where a
railway company had been diligent in this regard, it would not have
been responsible for an explosion causing the death of the fireman,
although the directors had been notified that the particular engine
was unfit for use. 2 * Other courts have held precisely the reverse on
similar facts, 80 conformably to a view elsewhere more fully presented,
that the servant who has charge of the master's machinery and appli-
ances is to be deemed the vice-principal of the master, and not a fel-
low servant with those who may be engaged at labor on the premises,
or in connection with the machinery. 81

§ 3929. What Inspections and Tests in the Case of Steam-Boilers. —

Applying the doctrine already referred to, relating to inspections, to
the case of steam-boilers, it has been reasoned that whether or not
the duty of a master prpperly to inspect a boiler kept in a building
in which servants are engaged is performed by the application of any
given test, is a question to be determined by the condition of the boiler
and the situation and location, and by considering whether the par-
ticular test will give indications as to the safety of the boiler. 82 If
a boiler gives evidence of weakness in a particular place by the leak-
age of steam at that place, and, notwithstanding the admonition, no
test or repair is made, and it subsequently explodes, killing a serv-
ant of the owner, he will be liable in damages therefor, on the ground
of having failed to exercise reasonable care to make it safe by proper
inspection and proper repairs. 88 So, the fact that the employer, a
railroad company, was admonished of the weakness of a locomotive-
boiler by the fact that the engine was frequently taken to the repair-
shop for repairs and would not sustain a full head of steam, — made a
question for the jury with respect to its negligence, the boiler having
exploded and killed the fireman. 84 But a railroad company which

'•Hard v. Vermont &c. R. Co., 32 296; s. c. 58 Am. Rep. 722; Puller

Vt. 473. v. Jewett, 80 N. Y. 46; s. c. 36 Am.

" Columbus Ac. R. Co. v. Arnold, Rep. 575. *

31 Ind. 174, 187. "Post, § 4926.

" Ford v. Fltchburg R. Co., 110 " Egan v. Dry Dock &c. R. Co., 12

Mass. 240; Cumberland Ac. R. Co. App. Dlv. (N. Y.) 556; s. c. 42 N. Y.

v. State. 44 Md. 283; Cumberland Supp.'188.

tec. R. Co. v. State, 45 Md. 229; "Re California Nav. &c: Co., 110

Nashville &c. R. Co. v. Jones, 9 Fed. Rep. 670. *

Heisk. (Tenn.) 27; Pennsylvania * Kirkpatrick v. New York &c. R.

Ac. R. Co. v. Mason, 109 Pa. St. Co., 79 N. Y. 240.

VOL. 4 THOMP. NBG.— 12 177

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4 Thomp. Neg.] duties axd liabilities of the master.

has caused a test of the stay-bolts in a boiler, by having a competent
and expert workman and assistant subject them to the best known
tests to discover whether they are whole and sound, is not liable for
the death of an engineer caused by the explosion of the boiler, due
to the broken stay-bolts, shortly after such inspection. 85



Bight of Employer to Ecly upon Certificate of Public In-
spector. — There is another doctrine to the effect that an employer
who has no knowledge fitting him to inspect a boiler may rely on
the certificate of the official boiler-inspector. 86



Failing to The a Fusible Safety-Plug. — Failing to use on
his boiler a fusible safety-plug, as required by statute, has been held
evidence of negligence in a case of this kind ; and, in the face of such
a statute, it is incompetent to introduce evidence of a general custom
among engineers not te use such a safety-plug. 87



Evidence on which Employers have been Held Liable in
the Case of Explosions of Steam-Boilers. — An employer was held lia-
ble to a coal-passer, subject to the orders of the engineer, for injuries
caused by the explosion of a boiler in his factory because of the failure
of his engineer to require the extinguishment of the fire and dis-
connection of the boiler, on which a local distention or ''bag" had
formed, to which the engineer's attention was called, where the ex-
plosion would not have taken place if the boiler had been immediately
disconnected and relieved of steam, and the explosion happened three
hours after notice to the engineer. 88 Where the evidence tended to
show that the defendant bought a steam-boiler at second-hand and
used it about eighteen months without having it inspected, and that,
to his knowledge, it had leaked for some time before the accident;
and that, two daya befpre the accident, he declined to fix it, saying
that he had no time, — it was held that the questions of his negligence

88 Chicago &c. R. Co. v. Du Bois, St 63; 8. c. 46 Atl. Rep. 292 (in-

56 111. App. 181. On a second trial spector had certified that the boiler

of this case it was made to appear would stand a working-pressure of

that the inspector was partly deaf 90 pounds, while at the time of the

in one ear, but it appeared that his accident it was carrying 45 pounds;

hearing was good enough to deter- but the evidence showed conclu-

mine whether a bolt struck with a sively that the accident was not due

hammer was sound or broken, and to weakness of the boiler). But

the court adhered to its decision in compare ante, § 3789.

the face of the strong physical cir- "Cayzer v. Taylor, 10 Gray

cumstances pointing to the conclu- (Mass.) 274.

si on of negligence: Chicago &c. R. "Mattise v. Consumers' Ice Man.



Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 29 of 165)