Arnold v. Cal. Standard Portland Cement Co.

SHAW, J.

Appeal by defendant from the judgment and from an order refusing a new trial.

Plaintiff sued to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.

The complaint alleges that defendant negligently furnished for plaintiff’s use an unsafe, defective, and insufficient electric battery in the use of which plaintiff was injured.

He was engaged in exploding blasts of dynamite and powder for the defendant. At the time of the injury, it appears, they were blasting in beds of clay. Small holes would be drilled several feet into the clay, at the bottom of which heavy charges of- black powder would be exploded to break up the clay so that it could be shoveled up and carried away. As a part of the process it was necessary first to enlarge these holes at the bottom so that they would hold enough of the black powder to lift the dirt. This process of enlargement was called “springing the holes.” It was done by putting a small charge of dynamite at the bottom of the hole, connecting it by an “exploder” and wires with an electric battery a safe distance away, tamping about eight inches of dirt in around the wires immediately above the exploder, and then exploding the dynamite by means of an electric charge through the wires from the battery to the exploder. The result would be that the dirt tamped in would resist -the upward force of the explosion which would exhaust itself in making the hole larger at the bottom, ready for the black powder. Nine holes had been drilled and plaintiff was engaged in “springing” them. After the small dynamite charge was exploded it was his duty to remove the earth that had been tamped in, thus

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clearing the hole so that the black powder could be let' down to the enlarged space at the bottom. While he was removing this earth from one of these holes, the charge exploded, inflicting the injuries complained of.

The plaintiff first connected the entire nine holes in series and attempted to explode all of them at once by a single electric shock from the battery. He found that the first hole had blown out, that is, the blast had escaped from the top, because of defective tamping. It could not be ascertained from the surface appearances of the holes which had not thus blown out, whether the blast had been set off or not, for if the tamping had been properly done, the force of the explosion would be spent below the tamping, in springing out the sides of the hole, producing no effect at the surface. Fearing that some of the other blasts had not exploded, he then connected each separately with the battery and tried them singly with the electricity. None of them upon this trial gave any indication of an explosion. Assuming from this that the first shock from the battery had set off all the charges, he proceeded to clean the holes to receive the black powder. In the third hole the dynamite had not been set off by the battery and in cleaning it out he exploded the charge, inflicting the injuries alleged. There is evidence that this battery had been in use for several months and that it sometimes failed to discharge a blast even when connected with a single hole. Plaintiff had been at work there for a considerable time before the injury and had often seen this battery. Its, defects were well known to the other men in the same service, but there is no conclusive evidence that they were known to the plaintiff. The circumstances also tend to show that the plaintiff knew that a battery would sometimes fail to set off a blast, but the evidence is conflicting on that point. He testified that he proceeded to clean the hole precisely as if there were no dynamite in it, taking no care to avoid an explosion in case there were. The questions whether he used due care in failing to_ take such precautions as were possible to that end, and in assuming that the blasts were exploded, and whether the failure to explode was due to the weakness of the battery or to his own neglect in failing to make proper connections between the dynamite and the battery, are very close ones in view of all the evidence in the case. We are not satisfied that it is insufficient to sus