Evening capital news. (Boise, Idaho) 1901-1927, 1916-10-24
CASE REMANDED
FOR new TRIAL
Decision Given on Rehear.
ing in Personal Damage
Suit From North.

The supreme court ruled for a second
time today on the appeal, on rehearing,
in the personal damage case of Adolph
J. Weisner versus the Boomers Ferry
Lumber company and In a decision
written by Justice Morgan concurred
in by his associates. again reverses the
judgment of the district court and re-
mands the case for a new trial. Both
the plaintiff and defendant moved for
rehearing. Counsel for the lumber
company held the action should be dis
missed on the grounds 1t proved that
the company provided a competent ser
want to warning of the danger of ex-
plosfon of dynamite in his work and
that Weisner knew of the danger when
he accepted the employment therefore
assuming the task incident to his en-
ployment. Weisner through his coun-
sci held that the judgment of the trial
court by which he had, been given
heavy damages against the company
should have been affirmed as the evi
dence proved that Just prior to the
time OF the accident he had not been
in the immediate vicinity where blasts
were being exploded: that OH the day
Of the injury he changed his place of
within short distance from where the
given no notice OF the danger and
therefore did not assume the risk.
WHAT COURT SAYS.
Passing upon the issues involved in
the case the supreme court says in
part in its decision:
without entering into a further dis
cussion of the law we will say that
upon n careful examination OF the au-
thorities cited by the parties, we have
reached the conclusion that IL respond =
ent was, for several days prior to the
| accident, continuously employed at
work upon the construction OF a road
so near toothers engaged In the same
work. who were using dynamite, as to
| make it necessary to give him signals
in order that he might retire to place
Of safety when a blast was to be set
off, and IL appellant had adopted and
used reasonable and proper care to
enforce a system OF signals for his pro
lection and had assigned to proper per-
sons the duty of giving them. the per
Torrance of that duty was a detail OF
the work and was not nondelegable and
the failure of such persons to give the
warning on the occasion OF the acct
dent was not the failure of a vice.
principal OF appellant but that of a
fellow servant OF respondent.
III respondents contention is well
founded in fact. that he had always
before the accident been employed al
safe distance from where blasting
was done and that he was. removed
from there by appellant to a place
within the danger zone without any
notice to him. or knowledge upon his
part, that his new place of employ
ment was near enough to the point
where blasts were about to be exploded
to render his position hazardous, he
cannot be held to have assumed the
risk incident to his employment for he
could not assume risk without the
knowledge of it's existence.
I'VE do not desire to be understood
that we decide from the record before
us that the above stated contention of
respondent is, or is not, well founded
in fact. This is a question which
should be submitted to jury, under
proper instructions.
I'VE. therefore. adhere to our former
conclusion and reverse the Judgment
and remand the cause to the district
court with instructions to grant a new
trial"