Bane v. Irwin

• Decision Date: 24 February 1903
• Parties: BANE v. IRWIN et al., Appellants
• Court: Missouri Supreme Court

72 S.W. 522

172 Mo. 306

BANE v. IRWIN et al., Appellants

Supreme Court of Missouri, Second Division

February 24, 1903

Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.

Affirmed.

Percy Werner, Howard Gray and Galen & A. E. Spencer for appellants.

(1) Plaintiff charged that defendant negligently sent him into a dangerous place to work, he being in ignorance of the danger and defendant having actual knowledge thereof. The proof wholly failed to establish the cause of action alleged. (2) Plaintiff acted at the time in question on his own judgment and of his own volition, without hesitation or objection with as full knowledge and opportunity for knowledge as had Gibbs, the alleged foreman, and in his own way, and assumed the risks involved which were those incident to the service in which he was engaged. McArthur Bros. v. Trout, 88 Ill.App. 638; King v. Morgan, 109 F. 446; Miller v. Western Stove Co., 61 Ill.App. 662; Findlayson v Utica M. & M. Co., 67 F. 507. (3) Plaintiff and Gibbs, the alleged foreman, were fellow-servants engaged in a common work at the time in question. Hawk v. McLeod Lumber Co., 65 S.W. 1022; Marshall v. Schricker, 63 Mo. 310; Card v. Eddy, 129 Mo. 514; Grattis v. Railroad, 153 Mo. 407. (4) Plaintiff's first instruction was erroneous. It summarized all the evidence favorable to plaintiff's side of the case. Aaron Co. v. Hirschfield, 89 Ill.App. 205; Mitchell v. Transfer Co., 65 S.W. 835. It failed to require a finding of knowledge of the danger on the part of the defendant. It introduced a new cause of action. It charged, as a matter of law, that Gibbs was not a fellow-servant of plaintiff's. It did not confine the jury to a consideration of the evidence introduced as to certain facts. McCarty v. Hotel Co., 144 Mo. 397; Boemer v. Co., 69 Mo.App. 601. (5) Plaintiff's third instruction, purporting to furnish a measure of damages, was erroneous. (6) The damages are excessive.

Thomas & Hackney for respondent.

(1) The first instruction given by the court for plaintiff was proper and submitted to the jury no issue not raised by the pleadings. The issue before the jury was whether plaintiff had been negligently ordered into a place of danger by defendants' foreman, Gibbs. The qualifying clause in this instruction did not go beyond the limits of the charge of negligence in the petition that the foreman "negligently and carelessly ordered and directed plaintiff to go back and light the other shot." Dowling v. Allen, 74 Mo. 20; McPheeters v. Railroad, 45 Mo. 24. (2) The order of the foreman to the plaintiff to return and fire the shot was an assurance from him, on which plaintiff had the right to rely, that it was reasonably safe to so return and light the shot. Herdler v. Buck's Stove and Range Co., 136 Mo. 17; Sullivan v. Railroad, 107 Mo. 78. And the plaintiff did not, under these circumstances, assume the risk of the danger of returning and lighting the shot in obedience to the order. Stevens v. Railroad, 96 Mo. 212. (3) While plaintiff had seen Gibbs, the foreman, place his miner's lamp to the fuse of the center shot after the other two shots had been lighted and were "spitting," he was not in a position to know whether Gibbs had in fact lighted this shot, being at the time some twelve or fifteen feet away from Gibbs in a dark drift, and he was not in as good a position as Gibbs to determine whether the shot had in fact been lighted. On plaintiff's inquiring of Gibbs as to whether he had lighted this shot, he was informed that he had not. Gibbs knew or ought to have known what he had done. The parties were not on equality either as to authority nor as to information or means of knowledge as to whether the shot was in fact on fire. (4) Gibbs, the ground foreman in the mine where plaintiff worked, had control of the work in which plaintiff was engaged and was the person intrusted by defendants to direct plaintiff how, when and where the work should be done. This constituted Gibbs a vice-principal, and if he was negligent the defendants are chargeable with the consequences. Miller v. Railroad, 109 Mo. 350; Russ v. Railroad, 112 Mo. 45; Donohoe v. Kansas City, 136 Mo. 670; Foster v. Railroad, 115 Mo. 165; Dayharsh v. Railroad, 103 Mo. 570; Cox v. Granite Co., 39 Mo.App. 424. The fact that Sennett Rankin was general ground foreman, having general charge of all of defendants' mine and gave directions to each of the ground foremen in the several mines as to the work he desired done in his particular mine, did not render each ground foreman a fellow-servant of the men in his particular mine and under his immediate control. The mere fact that Gibbs, as foreman, did some work occasionally which might have been entrusted to other servants, did not render him a fellow-servant with plaintiff. Miller v. Railroad, 109 Mo. 350. (5) It was not necessary for plaintiff to show that Gibbs wrongfully concealed from plaintiff the fact that the third shot had been lighted. It was sufficient to show that the act was negligently done. Gannon v. Gas Co., 145 Mo. 502. This case was fairly tried; the instructions given by the court submitted the case to the jury in a more favorable light to defendants than they were strictly entitled to; the jury found the issues for the plaintiff in accordance with the decided weight of the evidence and assessed the damages at a moderate sum, considering plaintiff's age and the total loss of his eyesight.

OPINION

GANTT, P. J.

This is an action for damages for personal injuries. The defendants were partners engaged in operating lead and zinc mines at Duenweg, Jasper county, Missouri, under the name and style of Ground and Irwin. The plaintiff was in their employ, working in one of their mines, cutting dirt and blasting. On March 24, 1899, one Thomas Gibbs was mine boss or ground foreman in the mine at which plaintiff was working for defendants. Defendants had other mines in that immediate vicinity and Sennett Rankin was the general ground foreman over the ground foremen in each of said mines.

"Plaintiff for his cause of action alleges that on said 24th of March, 1899, the said Gibbs as such foremen had full charge and represented the defendants in the said mine with full power and authority to act for and represent defendants in the conduct of their business therein. That on said day the said ground foreman ordered plaintiff to drill two holes and prepare three shots, and plaintiff made the three necessary holes for the said shots, and the said foreman loaded said shots and tamped them, and then and there ordered plaintiff to burn one shot, and then and there stating that the said ground foreman would at the same time burn one shot. That plaintiff set fire to one shot and the ground foreman, as plaintiff then supposed and believed, set fire to one of the other three shots, when said ground foreman said to the plaintiff, 'Let's get out of here. It is time for us to get out.' Plaintiff and said ground foreman then went down to the switch, 100 to 125 feet from where the shots were. That after they had reached the switch two shots went off, being all the shots that plaintiff supposed had been lighted. When the said two shots went off, the said foreman, while acting in the scope of his authority, and while representing the defendants with full power to bind defendants, negligently and carelessly ordered and directed plaintiff to go back and light the other shot, saying: 'Go right up there and light that other shot.' And the plaintiff then and there believing that the other shot had not been lighted by said ground foreman, and not knowing that the same had been lighted, in obedience to said order went into the drift and to the shot to light the shot, and as soon as plaintiff got to the shot and before he could turn and get away or do anything, it went off and exploded and knocked plaintiff around on his hands and knees. That by the said explosion, crushed rocks and flint and gravel were thrown with great force and violence against plaintiff's head and body and into both of plaintiff's eyes, whereby plaintiff was greatly bruised and both of his eyes put out and utterly destroyed. That he thereby suffered great pain and anguish of body for a long period of time, to-wit, six months, and suffered great anguish of mind, and his eye-sight entirely lost.

"Plaintiff further alleges and charges the fact that at the time the plaintiff fired one of said shots, and the said foreman announced that the said foreman would discharge one other of said shots, the said foreman lighted both of said shots, but wrongfully and negligently concealing from plaintiff the fact to be that he had lighted two of said shots, and the said ground boss and the said defendants were guilty of gross negligence in ordering plaintiff to return to fire the remaining shot without first notifying plaintiff that the said third shot, or the fuse thereof, had been theretofore lighted by the said ground foreman, and that by reason of said negligence and carelessness of the said defendants through their said agent, the said ground foreman, plaintiff suffered the injuries complained of.

"Plaintiff further states that by reason of the premises and the negligence of the defendants as aforesaid, and the explosion aforesaid, he was damaged and injured in the sum of $ 20,000.

"Wherefore, plaintiff prays judgment against defendants for the said sum of $ 20.000."

The answer was a general denial, a plea of assumption of the risk, and that the negligence if any was that of a fellow-servant. There was a trial and verdict for plaintiff for $ 6,000. Defendants appeal.

The evidence was confined to the immediate circumstances and was substantially the following:

Plaintiff was twenty-three years old at the time of the injury. His...