Boxley v. Brenizer Co.

48 App. D.C. 85, 1918 U.S. App. LEXIS 2357

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 27, 1918
• Docket: Nos. 3102 and 3103
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The first count of the third amended declarations, on which the cases were tried, alleged the breach of duty resting upon defendant, as follows: “It thereupon became the duty of the defendant to examine said holes and ascertain whether the charge in each one had been actually exploded, which fact could have been ascertained by it, said defendant, had a thorough and careful examination been made, but the said defendant negligently and carelessly failed to ascertain the fact of the nonexr plosion of certain of said charges, and permitted the day shift to begin work, on the, following morning without making a thorough effort to ascertain whether the explosive in each of said holes had been discharged.” In the second count, the breach of duty is alleged as follows: “That it thereupon became the duty of the defendant to cause, through careful and competent employees, the discharge of all of the explosives in said holes, but the said defendant negligently and carelessly selected incompetent employees for that purpose.”

The single assignment of error relates to the refusal of the court to permit a witness for plaintiff to answer the following question: “At the time you attempted to shoot off the center holes and they did not go off, did you know of any instrument by which, at that time, it could have been determined what the trouble was with those charges ?” Objection was interposed on the general ground that the declaration did not charge that defendant failed to provide a safe place in which to work or the necessary instruments and tools with which to work, but that it merely charged that the company negligently failed to make proper inspection after the holes were exploded to ascertain whether all had been exploded before permitting the day shift to go to work. In other words, the question was not relevant to the issue; in that it related to a test to be made before the holes had been exploded to determine why they had not exploded, while the issue related to tho failure to properly inspect the face of the tunnel after the explosion and before permitting the day shift to go to work, and the failure to select competent employees.

When the objection was sustained by the court, counsel for plaintiff made a tender to prove as follows: “I offer to show by ibis witness that an instrument known as an explosive tester or galvanometer was in use and obtainable at that time by the defendant, which machine would have disclosed the difficulty which had been experienced in the failure to shoot off the holes; and that by the use of such instrument it would have been unnecessary to use the dangerous expediency of connecting those holes up independently; that the use of such an instrument was a part of a proper inspection of said heading.”

The tender is as widely at variance with the declarations as the question. It relates entirely to a test of conditions existing before the explosion in the evening, and not to the inspection of the conditions snrronnding the workmen the next morning, or the selection of competent employees, which furnished the basis of the negligence alleged. There was no error in sxxstaining the objection. All other issues of fact, without objection or exception, were submitted to tbe jury, and its verdicts thereon are conclusive.

The judgments axe affirmed. Affirmed.