167 Ky. 190
Court of Appeals of Kentucky.
Delph's Adm'x v. J.M. Hassett Const. Co.
Dec. 3, 1915.

Appeal from Circuit Court, Estill County.

Action by J. C. Delph's administratrix against the J. M. Hassett Construction Company.

Judgment for defendant, and plaintiff appeals. Affirmed.

Grant E. Lilly, of Richmond, for appellant.

Beverley R. Jouett, of Winchester, Clarence Miller, of Irvine, and Dallam, Farnsley & Means, of Louisville, for appellee.

J. C. Delph an experienced railroad workman was struck by a stone thrown from a blast exploded by appellee company while engaged in railroad construction work, and his administratrix brought this action for damages. The negligence alleged is: That Sturgill, a powder or blast man of appellee, who was in charge of that branch of the work, without sufficient warning to decedent, shot off an excessive blast which was unreasonable and unusual in character, and that because of its nature and insufficiency of notice Delph was unable to get to a place of safety before the explosion; that Sturgill, the powder man, was grossly incompetent to fill the position which he occupied, and this was known to appellee; that appellee failed to provide a reasonably safe way for the decedent to avoid injury from the blasts or shots, and failed to furnish him a reasonably safe place in which to work.

The whole evidence shows Delph was an experienced railroad workman, having been engaged in such construction work for more than 16 years; that on the day of the accident he was the foreman of a tracklaying crew, and that Sturgill was the powder man, and had been engaged during the day in preparing a 16-hole blast, the one which killed Delph, and that the same was shot off toward the middle of the afternoon; that the tracklaying crew during the day were working about and near where the blast was being prepared; that a few minutes before the shot was fired Sturgill notified Delph in person that he was going to set off a big blast, and that Delph notified his men; that the men went in different directions seeking places of safety, some seeking shelter under a steam shovel, some under dinky flat cars some distance down the track, and some behind cliffs and trees; that Delph did not seek any of these places, but went to a point about 300 yards from the place near a tree and a house; that some few minutes after having given this personal notice to the men the steam whistle blew several short blasts, which was known as the signal that a shot was about to be fired; that from 1 1/2 to 5 minutes after the steam whistle blew the shot was fired; that at the time the steam whistle blew Delph was seen about 25 yards from a tree going toward it, and had plenty of time to have reached the tree or a house near it before the shot was fired, but, although he had time to have gotten to these places of safety, he was standing a few feet from the tree when the shot was fired and the stone struck him. Delph's own son testified that at the time the steam whistle blew he saw his father about 25 yards from the tree going toward it, and that it was 1 1/2 or 2 minutes after the whistle blew before the shot was fired.

There is very little contradiction in the evidence, and it all shows that Delph had ample opportunity between the time of the notice and the explosion to have reached a place of safety; he could have gotten much further from the explosion than he did or could have reached the tree or the house near where he was killed. It is perfectly apparent that he himself thought he was in a place of safety and was a sufficient distance from the blast to be safe without seeking cover.

The instructions of the court clearly and accurately submitted to the jury the issue whether Delph had sufficient notice before the shot was fired to reach a place of safety, and under the evidence this was the only real issue in the case. The jury found a verdict for the defendant, and the plaintiff has appealed.

An experienced workman who understands the danger and is cognizant of all the facts and given sufficient notice of an intended blast and does not take himself to a place of safety cannot recover.

It may well be doubted whether in this case there was any evidence of negligence upon the part of appellee to authorize a submission of the case to the jury, but surely, under the evidence, the jury was authorized to find for the defendant under the instructions given.

The question of the failure to furnish the decedent a reasonably safe place to work was not involved in this case under the evidence. All the evidence shows that at the time of the injury Delph was not at the place of work, but was 300 yards from it, presumably seeking a safe place to avoid the effect of the shot.

The complaint of the failure to instruct the jury because defendant did not provide a reasonably safe way for decedent to avoid injury is really only a branch of the question whether he had ample notice of the shot in time to have avoided the injury, and the court properly declined to give such an instruction.

While there was evidence that the 16-hole shot was larger than they had been in habit of firing, it also showed that a 16-hole shot is by no means unusual in such work, and that often much heavier shots are fired; in fact, it is immaterial whether or not the shot was excessive or unusual. It all goes back to the original inquiry whether, whatever the nature of the shot was, Delph had notice of its size and nature, and had sufficient notice to have reached a place of safety before it was fired.

There was no evidence whatever tending to show that Sturgill was an incompetent powder man; on the contrary it showed that he was an experienced, competent, and careful workman, and there is no evidence to show that the blast was not properly prepared.

Under the pleadings in this case and the evidence the court properly submitted to the jury the only real question at issue, and the jury found for the defendant on that.

Perceiving no error prejudicial to the substantial rights of appellant, the judgment is affirmed.

Ky.App. 1915.
180 S.W. 64, 167 Ky. 190


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