109 F. 446 (8th Cir. 1901), 1,418, King v. Morgan

Docket Nº:1,418.
Citation:109 F. 446
Party Name:KING et al. v. MORGAN.
Case Date:May 03, 1901
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 446

109 F. 446 (8th Cir. 1901)

KING et al.



No. 1,418.

United States Court of Appeals, Eighth Circuit.

May 3, 1901

         An intelligent man, with full knowledge of the character and quality of an implement furnished him for use, and all of the facts and physical laws which render its use dangerous, after having voluntarily accepted employment in a hazardous business, involving the use of such implements, cannot be heard to say that he did not know it was dangerous, but assumes the risk of injury from its use, as a hazard of the employment.

         This was an action instituted by Morgan, defendant in error, against King, Brewster, and Porter, doing business under the firm name of Cook Mining Company, plaintiffs in error, to recover damages for an injury sustained by him while working for them in one of their mines. Plaintiff charged that he was employed to tamp powder in drill holes, preparatory to exploding rock, and that defendant negligently furnished him with an unsafe and dangerous implement for doing the work, and that as a result of its use a premature explosion occurred, which seriously injured the plaintiff. The answer put in issue the alleged negligence, asserting that the defendants used reasonable care in selecting and furnishing the implement in question; that the business in which they were engaged was perilous, and that whatever danger or risk there was in using the implement in question was manifest and apparent to plaintiff; and that by accepting their employment he assumed any risk incident to it. A trial was held on these issues, and at the close of plaintiff's case, and again at the close of all the evidence, defendants requested the court to direct a verdict in their favor. The court declined to do so, and, after giving and refusing other instructions, the jury took the case and rendered a verdict for the plaintiff, upon which a judgment was entered below. There are many assignments of error, but the only one urged

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at the hearing was that the court erred in not directing a verdict for the defendants.

         William J. Miles, for plaintiffs in error.

         R. D. Thompson (B. M. Malone, on the brief), for defendant in error.

         Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District Judge.

         ADAMS, District Judge, after stating the case as above.

         We have read all the evidence preserved in the bill of exceptions with great care, and think the following facts are practically undisputed: Plaintiff at the time of his injury was a young man of 24 years of age, of mature judgment, and large experience in using the machine drill employed in mining operations. For more than two years he had been working in mines in Colorado, drilling holes and loading the same with dynamite (sometimes in the evidence called 'giant powder') preparatory for explosions. For more than three months prior to his injury he had been employed in defendants' mines engaged in the same work. He was well educated, having had a full course of instruction in common schools, and instruction for about three years afterwards in high and normal schools. He knew the properties of dynamite,-- among others, that it would explode by concussion. He knew the laws of force,-- that a heavy blow was more likely to produce concussion than a light blow. He knew the necessity of graduating the force employed in tamping the charge into the drill hole so as, if possible, to obviate explosion. At the time he entered defendants' employment, he found their mine equipped with tamping bars made of gas pipe of the diameter of about one inch, interior measure, and of the length of about seven feet. The ends of these bars were plugged with wood, clay, or other substances, so that the dynamite could not be pressed back into their hollow interior. This sort of tamping bar had been for a long time in use by defendants at their mine, and at the time was in use in at least 25 per cent. of all mines in the state of Colorado. In a majority of the mines, however, wooden bars were employed for tamping purposes; in some, solid iron bars were employed, but these only to a limited extent; in others, an implement called an 'iron scraper' was employed for the purpose of tamping in the charge of dynamite. Plaintiff at the time he entered defendant's employment was entirely familiar, by reason of previous service in other mines, with the use of each and all of these devices as tamping bars. He had seen them and used them himself in several other mines in which he had previously been employed. He had served an apprenticeship for several months, learning how to handle the machine drill, and, of necessity, how to drill holes and charge them with dynamite. After serving such apprenticeship he had been for a year or more before the injury in question in full charge of a machine drill, and knew as much about the merits and demerits of the different kinds of tamping bars employed in the mines as any one. At the time of engaging in the service of defendants he knew they were employing the hollow iron bar made of gas pipe, and commenced its use in defendants' mines

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without complaint or any suggestion of change, and continued using it without complaint or criticism for over three months before he was injured. During these three months no accident or injury occurred to plaintiff or any of his co-employes. It appears from plaintiff's own evidence that these tamping bars were entirely fit for the purposes for which they were used, and did good execution in tamping. While there is much conflict of testimony on the subject, there is evidence in the record tending to show that wooden tamping bars are less dangerous than iron bars; but it also appears (of which fact we may take judicial cognizance) that the business of exploding rock in mining operations is, at best, a hazardous one. Plaintiff testified that he knew that a blow would cause an explosion of dynamite. He also testified, in answer to questions, as follows:

         'Q. How hard did you tamp? That is, what force is usually applied for the tamping of this powder? * * * A. * * * Just steady, up and down. You get the powder in the bottom of the hole, and, after the powder has reached the bottom of the hole, pack it up and down something like that (indicating), with the bar in your hand. Never let loose of the bar. Let it go down as hard,-- but pack it. Q. Not like they used to load what? A. The old-fashioned shotgun; going down hard. Q. Why not? Why were you so particular? Why was it necessary to be so particular? On account of the liability of the dynamite to explode, if you struck hard, the powder? A. Yes, sir; I have heard of cases where dynamite was exploded by two trains coming together, as a jar would strike it; not necessary to strike it very hard.'

         Plaintiff says he was not informed by defendants at the time he entered their service that the bars in question were unsafe, and that he did not know they were unsafe. The trial below proceeded on the theory that there was some evidence tending to show plaintiff's ignorance of the danger incident to the use of the tamping bar in question, and the court's charge left this issue to the jury, as necessarily involved in the determination of their verdict. Notwithstanding plaintiff's claim of ignorance of danger, we are of opinion that the facts of the case, as already detailed, conclusively negative any such ignorance. He admits an intelligent appreciation of all the facts which constitute danger,...

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