Chambers v. Chester

• Citation: 72 S.W. 904,172 Mo. 461
• Parties: CHAMBERS v. CHESTER et al., Appellants
• Decision Date: 04 March 1903
• Court: United States State Supreme Court of Missouri

72 S.W. 904

172 Mo. 461

CHAMBERS v. CHESTER et al., Appellants

Supreme Court of Missouri, First Division

March 4, 1903

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

Affirmed.

Percy Werner for appellants; Galen and A. E. Spencer of counsel.

(1) There is no evidence to support the verdict: (a) Notice of grade of powder, both general and special -- by printed notice on each stick of powder supplied, was given. (b) If not it was immaterial, as plaintiff does not pretend that he would have proceeded in any different manner than he did, or that he could have used any greater care than he did. (c) There is no evidence that the same accident would not have occurred had plaintiff been using twenty-seven per cent nitroglycerine powder instead of forty per cent. A verdict may not be based on mere conjecture. Breen v. St. Louis Cooperage Co., 50 Mo.App. 212; Sorenson v. Paper & Pulp Co., 56 Wis. 338; Manning v. Ins. Co., 100 U.S. 693. (d) The injury was one of the risks of the hazardous occupation in which he was engaged, which was assumed by plaintiff. King v. Morgan, 109 F. 446. (2) Testimony that plaintiff was a married man was inadmissible. Stephens v. Railroad, 96 Mo. 207; Daymarsh v. Railroad, 103 Mo. 570; Mahaney v Railroad, 108 Mo. 191; Williams v. Railroad, 123 Mo. 573. (3) The first instruction given to jury on plaintiff's behalf is a tissue of errors: (a) It makes duty to inform plaintiff of increased hazards absolute irrespective of his knowledge or opportunity for knowledge. (b) It assumes a controverted fact, i. e., plaintiff's ignorance of grade of powder he was using and hazard thereof. Courts, in their charges, should not, directly or indirectly assume any controverted fact, nor use equivocal phrases which may leave such an impression. 2 Am. and Eng. Ency. of Pl. and Pr., p. 116; Fullerton v. Fordyce, 121 Mo. 13; Hull v. St. Louis, 138 Mo. 625; Peck v. Ritchey, 66 Mo. 121; State v. Mason, 96 Mo. 599; Railroad v. Zang, 10 Ill.App. 594; Railroad v. Shelton, 66 Ill. 424; Railroad v. Bloomfield, 7 Ill.App. 211; Railroad v. Dixon, 49 Ill.App. 492; Martin v. Leslie, 93 Ill.App. 52; Clough v. Whitcomb, 105 Mass. 482. (c) It assumes that plaintiff was in the exercise of ordinary care and prudence. (d) It contains a clause which is absolutely meaningless and confusing. (e) It contains a misstatement of fact. (f) It is not predicated on the evidence. There was no evidence that the explosion occurred "on account of the use of the said higher grade of explosive." The findings of a jury must not rest on surmise or conjecture, but must be based on substantial legal evidence. McCarthy v. Fagan, 42 Mo.App. 625. (g) It submits issues to the finding of the jury about which there is no proof. There was no evidence that the explosion occurred on account of plaintiff's "want of knowledge of the high character of the explosive," or of the "increased degree of care required of him to prevent such explosion." (4) The second instruction, given on behalf of plaintiff, is likewise fatally erroneous in several respects: (a) It places the duty of conveying information to plaintiff, as a matter of law, on a particular agent of defendant. (b) It made this duty absolute, requiring more than ordinary care. (c) And irrespective of plaintiff's knowledge or opportunities for knowledge. (d) The failure to give notice is made, as a matter of law, to constitute negligence. (5) The third instruction, given on behalf of plaintiff, is erroneous. It authorizes a recovery on the finding, of plaintiff's ignorance of the grade of powder he was using, notwithstanding that ignorance may have been due to his own negligence.

Thomas & Hackney for respondent.

(1) The third instruction given for the plaintiff was proper. It was defendants' duty to notify plaintiff of the substitution of the higher grade, and more dangerous explosive for the safer and less dangerous one; and plaintiff did not assume the increased risks attending the use of the newly-substituted and more dangerous explosive thus put into his hands without warning or knowledge on his part of its dangerous character. Smith v. Oxford Iron Co., 42 N. J. L. 474. (2) The controlling question presented by this appeal is whether the evidence was sufficient to justify the jury in drawing the inference that the substitution of the higher grade and more sensitive powder without notice or warning to plaintiff, and his handling of same in the same manner that he handled the low grade powder, believing it to be a less dangerous explosive, was the cause of the explosion. It was the special province of the jury to say whether, from all the facts and circumstances in evidence, the injury was caused by the negligent acts and omissions of defendants. Twohey v. Fruin, 96 Mo. 104; Dunn v. Railroad, 21 Mo.App. 198; 1 Shearman & Redf. on Neg. (5 Ed.), secs. 54, 55, pp. 64, 67; 1 Thompson Com. on Neg., sec. 161. "In applying the doctrine of proximate cause it is not necessary that the connection between the cause and the effect shall be proved beyond the possibility of doubt, or that such connection be cognizable by the senses. It is sufficient if the evidence of the connection produce that moral conviction upon which men are accustomed to act in the important concerns of life, and it is only necessary that the jury be reasonably satisfied that the alleged cause was in fact the proximate cause of the effect complained of." Buswell on Per. Inj., sec. 98, p. 156. It is proper for the jury to infer a fact from the existence of other facts in evidence. Smith v. Tel. Co., 57 Mo.App. 266; Tanner v. Hughes, 53 Pa. St. 289; Wharton on Ev., sec. 1226; 1 Greenleaf on Ev. (Redf. Ed.), sec. 44; 16 Am. and Eng. Ency. Law (2 Ed.), p. 317.

MARSHALL, J. Brace, Gantt, Burgess, Valliant and Fox, JJ., concur; Robinson, C. J., dissents.

OPINION

In Banc

MARSHALL J.

-- The following opinion heretofore rendered in Division One of this court, is hereby adopted as the opinion of the Court in Banc. Brace, Gantt, Burgess, Valliant and Fox, JJ., concur; Robinson, C. J., dissents.

This is an action for damages for personal injuries sustained by the plaintiff, while in the employ of the defendants, in their mine in Jasper county, known as the "Hawkeye Mine," caused by an explosion of nitroglycerine, which the plaintiff was loading in a hole that had been drilled in a rock wall, preparatory to blasting, and in consequence of which the plaintiff lost his eyesight. The petition contains three assignments of negligence, two of which the plaintiff offered no evidence to support and the court took them away from the jury, so that the case was tried solely upon the remaining charge which was as follows:

"Plaintiff further states, that he had, for a long time previous thereto, been in the employ of the defendants, and had been furnished by defendants, and had been using, giant powder with twenty-seven per cent only of nitroglycerine; that on the said March 20, 1899, the defendants had carelessly and negligently furnished plaintiff with giant powder containing forty per cent of nitroglycerine, without notifying or in anywise informing plaintiff and those employed with him in the mine of the change of powder. Plaintiff states, that the powder containing forty per cent of nitroglycerine, is much more easily exploded and will explode with much less force than powder containing only twenty-seven per cent, and requires a higher degree of care in the handling, lest the same prematurely explode, and powder containing forty per cent of nitroglycerine is therefore rarely used in the mines; that plaintiff, not knowing the dangerous character of the explosive furnished by the defendants for the charging of said drill hole, and believing that he was charging the same with giant powder containing only twenty-seven per cent of nitroglycerine, and exercising due care, and while using the said iron bar, and was with due care pushing the sticks of powder into place, in said drill hole with said iron bar, in the manner that he had been accustomed to do while using powder containing only twenty-seven per cent of nitroglycerine, the said giant powder, owing to its high explosive character as aforesaid, through the negligence and carelessness of defendants in not notifying plaintiff of the high grade of said explosive and of the necessity of greater care in its use, exploded while plaintiff was engaged in loading said drill hole, by which explosion, by means of the powder, and the pieces of gravel and rock which were thrown into plaintiff's face and eyes, plaintiff was seriously injured and wounded, and his eyesight of both eyes totally destroyed."

The answer is a general denial, with special pleas of assumption of risk and contributory negligence. There was a verdict for the plaintiff for five thousand dollars and the defendants appealed.

Three principal errors are assigned: first, refusal of the court to direct a verdict for the defendants at the close of the plaintiff's case; second, admission of incompetent evidence, to-wit, that the plaintiff was a married man; and, third, erroneous instructions given for the plaintiff.

The first assignment of errors necessitates a full statement of the evidence, and for this purpose the abstract of the evidence for the plaintiff, made by counsel for the defendants, is adopted. It is as follows:

Abstract of the Evidence.

"Plaintiff testified that he was forty-four years of age (over the objection of defendant that he was married); that he had been working in mines for the last few years, for the defendants about six months before he was injured; was earning $ 2.25 per day; that Mr. Sutton was the ground foreman, that he was engaged in cutting, i. e., drilling, exploding and shooting in flint ground,...