Stephen v. Duffy

Mr. Justice Scott delivered the opinion of the court: In the discussion of the motion for a directed verdict a great deal of attention has been given to the question whether the maxim res ipsa loquitur applies, the position of appellee being that negligence may be inferred against the appellant from the fact of the explosion alone, while appellant insists that the evidence relied upon by appellee should have gone farther, and tended to prove that the presence of the unexploded dynamite was due to some specific act of carelessness on the part of appellant. The evidence clearly shows -that the failure of this dynamite to explode may have resulted from any one of several causes. If there was a defect in the manufacture of the exploder, or if the exploder became moist, or if one of the wires leading to it had been broken, the current would not cause the dynamite to explode. Counsel urge that the failure to explode may have been the result of some defect in the manufacture of the exploder, for which appellant, who had used due care in the purchase of this material, should not be held responsible, and that the proof was fatally defective because it did not negative this and other like possibilities. Although the disposition of the cáse seems to have turned in the. Appellate Court upon the question whether this, maxim applies, we are not disposed to regard that as the crucial question. It was the duty of the appellant to exercise reasonable care in providing for deceased a reasonably safe place in which to work, and it may be conceded that the evidence shows, in this case, that aftef the charges had been exploded, two or three days before the accident, the mass of broken stone resulting from the explosion had been inspected by employees of appellant, and that there was then nothing apparent to the eye, in any part -of that mass of broken rock, to indicate that there was any unexploded dynamite contained therein. The evidence shows, however, that if, .instead of exploding the dynamite in an entire block, but a single row of holes had'been charged and the current applied to these charges at one time, an inspector examining the broken rock afterward could readily have ascertained the fact if the dynamite in one hole had failed to explode, because in that event there would have been a depression in the broken stone above the hole containing the unexploded dynamite. Whether or not the exercise of reasonable care in providing a reasonably safe place for the deceased to work in required of appellant that the dynamite in but a single row of holes be exploded at one time, so that an inspection thereof would determine with greater certainty whether or not the dynamite in any one hole had missed, was a question for the jury. It is, perhaps, true, that the method just mentioned would not be as efficacious and speedy in preparing the stone for removal as the method actually used. It is also probable that in using the method now under consideration less satisfactory results would be obtained from the use of the same amount of dynamite than by using the method that was actually pursued and that the prosecution of the work would be made more expensive. In determining whether the exercise of due care on the part "of appellant required the use of a slower and more expensive method, weight must be given to the fact that dynamite is a very powerful and dangerous force. In considering a similar question in Commonwealth Electric Co. v. Melville, 210 Ill. 70, we said (p. 78) : ’ “Electricity is a subtle and powerful agent. Ordinary care exercised by those who make a business of using it for profit, to prevent injury to others therefrom, requires much greater precaution in its use than where the element used is of a less dangerous character. As there is greater danger and hazard in the use of electricity, there must be a corresponding exercise of skill and attention for the purpose of avoiding injury to another, to constitute what the law terms ordinary care. The care must be commensurate with the danger.” The law so stated is applicable here. Nor can we say, as a matter of law, that the risk was assumed. Among the dangers assumed by a servant are the ordinary risks necessarily incident to the employment. This man’s business was to assist in the operation of a steam shovel engaged in shoveling broken stone. The danger of an explosion of dynamite is not incident to this occupation, and it is not contended that there is any other basis herein for the application of the doctrine of assumed risk. The case was rightfully submitted to the jury. Several witnesses, skilled by long experience in blasting stone by the method followed by appellant, testified, on the part of appellee,' as experts, in reference to the effect of an explosion of a battery of charges and in reference to an explosion of a smaller number of charges upon the condition and appearance of a ledge of stone, for the purpose of showing whether under given circumstances a proper inspection would show the existence of a charge that had missed fire after the other charges had been simultaneously exploded. It is objected that this was not a proper subject of expert testimony, for the reason that this stone was, in fact, inspected and observed by several persons after the charges had been fired and before the accident occurred, and that the effect of admitting this testimony was to permit the opinions of experts to prevail over the actual facts as they were shown to exist by the testimony of those who had inspected the broken stone. We think this a misapprehension. The testimony of the experts tended to show that a method could have been pursued by. which an inspection would have revealed the existence of a charge that had missed fire after the current had been applied, and for that purpose it was proper. The judgment of the Appellate Court will be affirmed. Judgment affirmed.