Spelman v. Fisher Iron Co.
New York Supreme Court
THIS is an appeal from an order overruling a demurrer to the complaint. The action is brought by a laborer of the company, employed in blasting, for an injury occasioned by the premature discharge of a blast, loaded with a newly invented powder, which he was directed to use by the defendant’s foreman or superintendent; which powder, it was alleged, was unsafe, had never been tested as an explosive, and could not be tamped for blasting without exploding.
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THIS is an appeal from an order overruling a demurrer to the complaint. The action is brought by a laborer of the company, employed in blasting, for an injury occasioned by the premature discharge of a blast, loaded with a newly invented powder, which he was directed to use by the defendant’s foreman or superintendent; which powder, it was alleged, was unsafe, had never been tested as an explosive, and could not be tamped for blasting without exploding. The plaintiff, as isl also averred, was ignorant of its dangerous quality; and was informed by the superintendent that it was a safe article…
1Opinion of the Court
By the Court,
Bocees, J.
On careful analysis and fair
reading of the complaint, it stands averred, as I think, 1st. That the company furnished the powder for use in its ordinary and appropriate business. 2d. That its superintendent directed its use by the plaintiff in such business. 3d. That it had never been tested as an explosive in blasting, and was, in fact, unfit and unsafe for such use; and 4th. That the plaintiff was ignorant of its dangerous properties. If correct in thus reading and construing the averments of the complaint, a right of action is unquestionably stated. It was held in…
2Cases cited1 opinion
- Wright v. . New York Central Railroad CompanyNew York Court of Appeals · 1862
3Cited by8 opinions
- Smith v. Peninsular Car WorksMichigan Supreme Court · 1886
- Berns v. Graston Gas Coal Co.West Virginia Supreme Court · 1885
- Western Union Telegraph Co. v. EyserSupreme Court of Colorado · 1873
- H. & T. C. R'y Co. v. MarcellesTexas Supreme Court · 1883
- O'Neil v. St. Louis, Iron Mountain & Southern Ry. Co.U.S. Circuit Court for the District of Eastern Missouri · 1881
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