Opinion
March 9, 1910.
Edward M. Angell, for the appellants.
Robert W. Fisher, for the respondent.
The complaint alleges that the notice required by the Employers' Liability Act (Laws of 1909, chap. 36, § 200, et seq.) was given to the defendants, but it did not appear that the plaintiff endeavored to comply with the provisions of the statute as to service of the notice. The case was submitted to the jury upon the theory that it could be considered an action under the common law, and that there was some evidence tending to show that the defendants were negligent in failing to furnish the deceased with a reasonably safe place in which to work. We are of the opinion that upon the evidence there was no question for the jury. It did not appear that the defendants' foreman was incompetent, or that the quarry was not entirely safe, considering the nature of the work to be performed, when the foreman was placed in charge of it, and it was undisputed that the danger to the plaintiff's intestate was created during the progress of the work. If, however, it be assumed that the danger to which the deceased was exposed was not an incident to his work, and that the defendants were chargeable with the consequences of every change in the surface of the rock during the progress of the work, the judgment must be reversed, because it appears by the evidence that a daily inspection of the rock was made by the usual and accustomed tests, and that no loose or dangerous rock was detected; that an examination was made of the rock that fell on the day of the accident, and to all appearances it was safe. There was no conflict of evidence as to the inspections, or as to the care and skill used in making them, and no evidence was given tending to show that any other test or examination might have been made, or that, if something else had been done, the accident might have been averted. This being so, the conclusion is inevitable that the death of the plaintiff's intestate was not due to any omission of duty which the defendants owed to him.
It follows that the judgment and order should be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.