Bassett v. Moberly Paving Brick Co.
| Citation | 268 S.W. 645,219 Mo.App. 81 |
| Parties | C. A. BASSETT, Respondent, v. MOBERLY PAVING BRICK CO., Appellant. * |
| Decision Date | 01 December 1924 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Randolph County.--Hon. A. W Walker, Judge.
AFFIRMED.
Judgment affirmed.
Hulen & Walden for respondent.
Willard P. Cave for appellant.
This is an action in damages for personal injuries. Defendant is an incorporated company engaged in the manufacture of brick from shale, and was operating near the city limits of Moberly, Randolph County, Mo.
In going to the shale beds from Moberly, persons drive west on Fisk avenue to the end thereof, then south on Park avenue to the south limits of the city, where Park avenue merges into a neighborhood road that runs south on the west side of defendant's shale pit. This work had been carried on by defendant for many years and as a result there was a deep excavation in the surface of the south slope of the hill wherein the pit was located. A hill begins its descent at the point where the road turns into Park avenue and about half way down the decline there is a hump or knuckle which is rather more precipitous than north thereof
Prior to the date of plaintiff's injury defendant had removed all of the available shale east of the old road which was an extension of Park avenue south and a little west past the shale pits, said road having been a public highway for more than forty years and served several families living to the south and west. In the summer of 1923, defendant, desiring to reach shale deposits west of the old road, established a new road about 185 feet west of the old one and running in the same direction. Defendant then ran the cut by means of a steam shovel in a general westerly direction beyond the old road. This cut was approximately sixty feet in width and from twenty to thirty-seven feet in depth, the west wall of which sloped at an angle of about forty-five degrees and was within ten to twelve feet of the new road, being about half way down the incline of the hill. The hump or knuckle of this new road was somewhat south of the said cut. It was steeper than the rest of the hill, having a drop of about twelve per cent and was so steep that a vehicle passing over it would disappear from the sight of watchers standing at the cut, and then reappear farther down about the place where a creek intersected the road. The sharp decline in the hill at the knuckle would cause a vehicle to press upon a horse hitched thereto in making the descent.
Defendant used dynamite in its excavating operations, setting off the charges by means of an electric battery operated by a man on top of the embankment. At the time of the injury to plaintiff the cut had been driven west of the old road a distance approximately 100 feet. The evidence shows the distance from the middle of the knuckle to a point 100 feet west of the old road in the south bank of the cut was 342 feet.
Plaintiff a man 78 years of age, lived in Moberly but owned a small farm of thirty-three acres about two miles southwest of the shale pits. He operated the farm himself, personally doing most of the work and labor incident thereto. It was his custom to drive back and forth daily between his farm and his home. The petition states that on August 13, 1923, at about 7:30 a. m. plaintiff was on his way to the farm in a spring buggy drawn by a young horse. He passed the place where defendant's employees were working at the cut and waved a greeting to two men on the south bank of the cut who were engaged in cleaning out a drill hole preparatory to placing a shot. The horse proceeded in a brisk walk, being inclined to increase his speed on reaching the knuckle because of the buggy crowding upon him, but the driver held him to a fast walk until they were on the steepest part of the hill when a blast was discharged at the cut by defendant's employees. The horse took fright and ran away down the hill to the south for several hundred feet to a turn in the road to the west, at which point the buggy was overturned. Plaintiff was thrown out and his left arm broken or dislocated, or both, at the elbow. He testified he was struck on the neck by flying particles from the blast; that flying particles also struck the horse and that this, together with the loud detonation from the blast caused the horse to take fright and run away, although he was gentle. The testimony in defendant's behalf shows that the blast which is alleged to have caused the accident was discharged in the southwest corner of the pit.
The negligence charged in the petition is as follows:
"And while plaintiff was on said road or street at or near said place and while plaintiff was in a position of peril from the discharge of explosives in said quarry, which defendant knew or by the exercise of ordinary care might have known, defendant negligently and carelessly, without any warning to plaintiff, although defendant had opportunity to warn plaintiff, discharged a quantity of high and dangerous explosive at said quarry causing large quantities of rock and debris to fall upon and strike plaintiff and his horse and conveyance, and creating by said explosion a concussion or blast and noise terrifying to horses of ordinary gentleness."
The answer was a general denial and a plea of contributory negligence, to which defendant made general denial. At the close of plaintiff's evidence, and again at the close of all the evidence, defendant offered an instruction in the nature of a demurrer which the court refused. The jury found for plaintiff in the sum of $ 3,666. Motions for new trial and in arrest were unavailing and defendant appeals.
It is charged, first, that the court erred in refusing to sustain defendant's demurrers, and it is urged that plaintiff's evidence shows that it was 342 feet (114 yards) from the steepest part of the hill, called the knuckle, to the south bank of the quarry, at the point where the shot was fired, and that the bank was thirty-seven and one-half feet deep. From these facts defendant argues that from a light shot (which defendant insists was discharged) it would have been physically improbable that any particles of debris were thrown that distance, the blast being shot from inside the cut and near the southwest corner at the base of the incline. There is testimony that the noise of the shot fired was very loud and could have been heard a great distance. Plaintiff testified positively that both him and his horse were hit by flying debris and in this statement he is not directly contradicted, although some of his witnesses testified they saw no debris falling. This is not positive contradictory evidence and we...
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