Blackburn v. Consolidated Rock Products Co.

DORAN, J. This is an appeal from a judgment awarding plaintiff the sum of $65,000 for the wrongful death of plaintiff’s husband, James Blackburn. The complaint alleges that on April 1, 1953, the decedent was, “by the express invitation of the defendant,” upon the gravel quarry premises of the defendant; that the defendant “so carelessly, negligently and unlawfully maintained, operated and controlled said premises as to cause some hard rock-like object to strike the body of said James Blackburn, deceased,” proximately causing death. Defendant’s answer in addition to a general denial, pleaded contributory negligence and unavoidable accident. A jury returned a verdict of $100,000 which was later reduced by plaintiff’s remittitur to $65,000 upon denial of a motion for a new trial.

The decedent, a truck driver, was in the employ of one Christiana, who had a contract to haul material from the defendant’s gravel quarry to a mill or processing plant. The quarry is a large pit with sloping walls approximately 110 feet high, and the method of operation involves the use of a crane working from the top of the pit which in turn operates a scarifier attached to a drag line. This procedure causes the earth to be loosened and rocks and gravel to fall to the bottom of the pit where a large power shovel loaded the material into trucks.

From the record it appears that a safety engineer made an inspection of the slopes approximately once a month; that the pit contained no warning signs, and had no watchmen or guards to warn men in the quarry when loose rocks were about to fall; that when the crane was working rocks would fall “all over the place.” The decedent had been employed for approximately five weeks prior to the accident.

On the day of the accident the truck which Blackburn, the deceased, had been driving, suffered a broken axle. Blackburn was then assigned another truck, and immediately preceding the accident this truck was being loaded by the power shovel. Christiana, the decedent’s employer, was engaged in attempting to repair the disabled truck which was located about 25 feet from the bank and some 45 feet from the power shovel. The crane was not operating on the day of the accident. The decedent went over to help Christiana with the disabled truck, [860]and a witness testified to having seen the employer Christiana motion to the decedent to come over. Christiana denied calling Blackburn, stating, “No, I didn’t call him over. He walked over by himself.”