The new North-west., 1888-04-20


powder which had been accidentally dropped
or otherwise misplaced or thrown out by
blast and then exploded by plaintiffs pick
among the ore and debris. On this question
vast amount of additional testimony was
given by both sides on the trial at the pres
ent term.
The plaintiff claimed that it was the fault
of the defendant in that the foreman and the
day shift did not notify him when he went
to work of the "missed charge" which he
alleges was there and struck by him. The
defendant claimed that the injuries were the
result of an unavoidable accident, arising
from causes over which it had no control, or
from dangers which it did not know Of, and
by the use of reasonable diligence could not
have ascertained, and also claimed. as a
matter of law, that if there were any negli-
eence it was the negligence of the fellow
servants of the plaintiff, and therefore the
defendant was not legally liable.
As matter of law, the Court held that an
act or duty which the master, as such, is
bound to perform for the safety and pretec-
ton of his employees, cannot be delegated
so as to relieve the master from liability to
a servant injured by the omission or negli-
gent performance of such act or duty,
whether the omission or negligent perform
auce be that of superior or ior officer,
agent or servant, to whom the doing the act
or the performance of the duty has been
committed In either case the servant who
undertakes or omits to perform it, is the rep
resentative of the master, and not mere CO.
servant with the one who sustains the injury,
Az TO- h1o for tho m
in which the duty is performed or discharged.
The testimony of the plaintiff and his wit
nesses tended to show that the accident was
from an unexploded shot left in the wall,
low down and under the debris from the shots
that had been exploded, or from an unexplo-
ded shot which had been pushed out by the
force of the exploded shots. And there was
! some evidence tending to show that one or
! two of the shots had missed. On the part of
! the defendant the evidence tended to show
that all the shots had been fred and that the
accident was occasioned by stray piece of
powder unexploded among the debris, the
existence of which could not have been as
certained by any reasonable foresight; and,
| besides, at the time of the accident the plain
tiff must have been standing at least 10 or
l IL feet IEOtu Iuo pldCo WueIo tuo SuOtS "0A0
placed in the wall.
An immense amount of expert testimony
was given, especially by the defence, to the
effect that If the accident was from full un.
exploded shot, then the plaintiff would have
been killed instantly by the explosion, while
the testimony for the plaintiff on this point
was to the effect that the plaintiff might not
| have been killed by such a shot, standing
close to it, if it went past him and he did not
receive the "burden" of the explosion.
Scallon, Esq, and Judge F. w. Cole; and
the defendant by W. W. Dixon, Esq, and
Judge Hiram Knowles, all of Butte. The
case was hotly contested on both sides, and
the trial lasted from Monday morning unit
yesterday evening.
The following witnesses were examined
during the case: For the plaintiff: VIM
Kelly (lefendant), Simon johnson, Georgt
C. Douglas, Tbos. Crany, Ed. Rooney, Den
mis- Mullen, James Carten, Mike Rooney
Mike Sullivan, John Cronin, Eugene Sulli
van. For the defendant: Joseph X. Clark
Michael Carroll, wn. E. Hall, Benz. Tibbey
N. B. Ringeling, C. E., G. W. Goodale, Osca
W. White. Harvey Showers, Thos. McDon
aid, Clark Cutler, Peter Bowman, Owe,
Mcbride, j. C. Savery.
The case went to the jury at $40 last even
and little before 8 p. m. they returned
verdict for the plaintiff of SIC, 600 and costs
I ~