Britt v. Crebo
| Decision Date | 16 June 1913 |
| Citation | 158 S.W. 65,172 Mo.App. 426 |
| Parties | EDWARD L. BRITT, Respondent, v. EDWARD CREBO, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A Powell, Judge.
Reversed and remanded.
Rosenberger & Reed for appellant.
(1) The burden is upon the plaintiff to show that the condition causing the injury was such that a reasonably careful test that is to say, the test ordinarily employed in the business would have disclosed it. Howard v. Railroad, 173 Mo 524; Rowden v. Daniell, 151 Mo.App. 15; Anderson v. Coal & Mining Co., 138 Mo.App. 76; Goode v. Coal & Coke Co., 151 S.W. 508; (2) The plaintiff was injured by one of the hazards of his employment, the risk of which he assumed. Furber v. Bolt & Nut Co., 185 Mo. 301; Hollingsworth v. Biscuit Co., 114 Mo.App. 20; Knorpp v. Wagner, 195 Mo. 627; Livengood v. Mining Co., 179 Mo. 229; Mathis v. Stock Yards Co., 185 Mo. 434; Chrismer v. Telephone Co., 194 Mo. 189, 208; Blundell v. Manufacturing Co., 189 Mo. 552; Coin v. Lounge Co., 222 Mo. 488. (3) The danger of injury from unexploded blasts was a constantly recurring risk incident to plaintiff's employment and he assumed the risk of injury therefrom. Livengood v. Mining Co., 179 Mo. 229; Brown v. King, 100 F. 561; Administrator v. Lime & Cement Co., 113 Mo.App. 330. (4) Plaintiff did not rely upon Wulfert's order to drill out the hole as an assurance of safety. He relied in part at least upon his own judgment and investigation. Such being the case defendant cannot be liable in any view of the evidence. Knorpp v. Wagner, 195 Mo. 637. (5) Britt and Wulfert were fellow-servants. Wulfert was not guilty of any negligence, but in any view of the case Britt and Wulfert were fellow-servants. Livengood v. Mining Co., 179 Mo. 229; Browne v. King, 100 F. 561; Administrator v. Lime & Cement Co., 113 Mo.App. 330. (6) In submitting the case to the jury on the theory that Wulfert actually knew that there was dynamite in the hole, there being no evidence to that effect, the instruction is wholly improper. Kassman v. City of St. Louis, 153 Mo. 293; Rearden v. Railroad, 215 Mo. 105, 138; Heinzle v. Street Ry. 182 Mo. 528, 559; Tetwiler v. Railroad, 242 Mo. 178, 193; Stetzler v. Street Railway, 210 Mo. 704, 714; Henry v. Mining Co., 144 Mo.App. 350.
Scarritt, Scarritt, Jones & Miller and Barclay, Fauntleroy, Cullen & Orthwein for respondent.
(1) The proof is conclusive that Wulford who ordered plaintiff to perform the dangerous work was a vice principal and the master is responsible for his negligent order and conduct. Bane v. Irwin, 172 Mo. 317; Burkhard v. Rope Co., 217 Mo. 457; English v. Shoe Co., 145 Mo.App. 439-451; Carter v. Baldwin, 107 Mo.App. 217. (2) The danger of injury from an unexploded blast was not a risk incident to the employment, and this is especially true in this case because the danger was produced by the defendant's negligence and plaintiff acted in obedience to the present command of his superior. Bane v. Irwin, 172 Mo. 317; Chambers v. Chester, 172 Mo. 461; McMullin v. Mining Co., 73 P. 685; Shannon v. Consolidated Co., 24 Wash. 119, 64 P. 169; McMahon v. Mining Co., 1 Am. Neg. Rep. (Wis.) 741; Mining Co. v. Tolbert, 31 So. 518; Harp v. Telephone Co., 80 S.W. 510. (3) Whether or not the defendant was negligent was a question of fact for the determination of the jury. The defendant was bound to exercise the highest degree of ordinary care. The danger to the servant was great, and the greater the danger to the servant the greater should be the care and caution demanded, and it was for the jury to say whether or not the defendant's conduct measured up to the standard established by the law. Knight v. Donnelly, 131 Mo.App. 152; Harp v. Telephone Co., 80 S.W. 510; Angel v. Coal Co., 74 S.W. 714. (4) There was sufficient evidence to support an inference that defendant's foreman knew there was dynamite in the hole; if not the error is harmless and so the Supreme Court has decided when an identical contention was presented. Morgan v. Wabash, 159 Mo. 262-283.
This is a master and servant case. Defendant was engaged as an independant contractor in the work of straightening the track of the St. Louis, Iron Mountain & Southern Railroad near the town of Leeper and in doing the work found it necessary to do extensive blasting in certain rocky cliffs. Plaintiff was one of the laborers employed by defendant to do the blasting and was injured on April 5, 1910, by the unexpected explosion of dynamite in a drill hole. He alleges that his injury was caused by the negligence of his foreman in ordering him to drill in a hole containing unexploded dynamite. The answer contains pleas of contributory negligence and assumed risk and the allegation that the injury was caused by negligence of a fellow-servant. A trial of the issues resulted in a verdict and judgment for plaintiff and the cause is before us on the appeal of defendant whose principal contention is that his demurrer to plaintiff's evidence should have been sustained.
Plaintiff was forty years old at the time of his injury and had been working for defendant since the preceding fall. He had no previous experience in the handling of high explosives and was the assistant or helper of the foreman of the men engaged in blasting. The foreman, whose name was Wulfert, attended to loading the drill holes and firing the shots. Other workmen drilled the holes. Two holes eight feet apart and eight feet deep were drilled in rock. Wulfert and plaintiff loaded them with light charges of dynamite to form a powder chamber or pocket at the bottom of each hole. The explosion of the first charge which consisted of two sticks of dynamite let down to the bottom of each hole proved inadequate and a second charge consisting of three sticks was put in and fired. This was also found to be insufficient to form the required powder chambers and a third charge of five sticks of dynamite was put in each hole and fired. An electric machine was used to fire the shots and the two charges were connected by wires in a way to cause them to be fired simultaneously by pressing a button on the machine which was placed at a safe distance from the shots. The sticks of dynamite were eight inches long and almost of the same diameter as the drill hole; consequently the charge of five sticks stood three feet, four inches high in the hole, provided the previous discharges had not created a chamber at the bottom large enough to allow some of them to fall over on their sides. The top stick only was attached to the firing wire. The other sticks were separate and were let down into the hole one by one. A small instrument called an exploder was attached at its top end to the firing wires and its other end was inserted in the top stick of dynamite before that stick was added to the charge. When the electric current was turned on it fired the exploder which, in turn, exploded the top stick of dynamite. As a rule the concussion thus produced set off the whole charge of dynamite. In the instance under consideration the charge in one of the holes exploded but in the other there was either no explosion or only a part of the dynamite exploded. Plaintiff fired the shot and then went down the track five or six hundred feet to get the powder for the final blast. The foreman inspected the holes in plaintiff's absence and found that one was clear and ready for the powder, but the other was choked with rock to a point about three feet below the top. The exploder was gone and the firing wire had been blown out of the hole. These things, together with the presence of new cracks in the rock, caused him to think the whole charge had exploded. In the inspection of holes after the firing of shots he used a bamboo fishing pole which he thrust into the hole for the double purpose of ascertaining if it were clear of obstructions and sufficiently cool for the safe reception of blasting powder. He states that he used the pole in the obstructed hole and found that it would not penetrate deeper than three feet. On the return of plaintiff with the powder the foreman ordered him and another laborer to drill through the obstruction and they obeyed the order, using a hand drill. The second or third stroke of the drill penetrated to a depth of about seven feet and was followed by an explosion of dynamite that blew out the drill and other missiles. Plaintiff was severely injured.
Both plaintiff and the foreman state they believed that both charges had been fully exploded. The foreman states that he made the usual inspection by probing with a bamboo pole and looking for results of the shot and he is uncontradicted by any substantial evidence. Plaintiff says that he did not see the foreman inspect the hole and make the usual tests but this statement does not tend to contradict the foreman for the reason that plaintiff was not near the hole during the inspection. Plaintiff testified:
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