Twohey v. Fruin

Decision Date18 June 1888
Citation8 S.W. 784,96 Mo. 104
PartiesTwohey, Plaintiff in Error, v. Fruin et al
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Elmer B. Adams Judge.

Reversed and remanded.

Edward Cunningham and A. R. Taylor for plaintiff in error.

(1) The circuit court erred in taking the case from the jury. The evidence of plaintiff tends to sustain the cause of action alleged in the petition. (2) If it be held that, as to this case, White was a fellow-servant with plaintiff, there was evidence tending to show that he was ignorant and incompetent for the work of blasting assigned him, and in doing which he hurt the plaintiff. The fact, well established by the evidence, that White was, and for a long time had been, in the habit of placing giant powder over a fire for the purpose of thawing it, and that neither of the witnesses ever knew that to be done by any other person tends to show that defendants were, or, by the use of reasonable care, would have been, aware of White's incompetency and ignorance. (3) If White was not a fellow-servant but a vice-principal the facts proved establish defendant's liability. Moore v. Railroad, 85 Mo. 588; McDermott v Railroad, 87 Mo. 285; Whalen v. Church, 62 Mo. 328; Long v. Railroad, 65 Mo. 225.

H. D. Wood for defendants in error.

The action of the court in non-suiting plaintiff was proper. The gist of the cause of action is that one White, an alleged foreman of defendants, negligently placed a vessel containing blasting powder upon a fire, thereby causing an explosion. The plaintiff failed to show either that White placed the vessel containing the powder upon a fire, or that said vessel was on a fire at the time of the explosion. Powell v. Railroad, 76 Mo. 834; Com'rs v. Clark, 94 U.S. 284; Ely v. Railroad, 77 Mo. 34; Waldhier v. Railroad, 71 Mo. 514. When the petition alleges a specific act of negligence as the ground of plaintiff's action, there can be no recovery for any other act. Price v. Railroad, 72 Mo. 414; Edens v. Railroad, 72 Mo. 212. The plaintiff cannot recover because his own evidence shows he knew of White's negligent method of thawing powder, and with such knowledge remained in his employment. McDermott v. Railroad, 87 Mo. 298; Keegan v. Kavanaugh, 62 Mo. 232; Devitt v. Railroad, 56 Mo. 302.

OPINION

Ray, J.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of the negligence of defendants.

For cause of action the petition alleges that defendants were engaged in the work of excavating a certain cut on the line of the Missouri Pacific railway in St. Louis county; that one Alexander White was the agent and foreman of the defendants, having charge of the men in their employ, in digging and blasting earth and stone along the cut; that plaintiff was one of the men working in said cut and under the control of said foreman, and that while he was working under said White, he was injured by the careless, negligent and reckless act of said White in placing a vessel or can, containing blasting powder on and upon a large fire of burning wood, in consequence and by reason whereof said powder took fire and exploded, inflicting upon plaintiff the injury for which he sues.

On the trial, after the close of plaintiff's evidence, the court sustained a demurrer to the evidence and judgment was rendered for defendants, from which plaintiff has prosecuted his writ of error, and the only question presented by the record is, was there any evidence tending to establish plaintiff's cause of action. The only cause of action alleged is that plaintiff was injured by the negligence of White in placing said vessel containing said powder in and upon said fire, whereby it took fire and exploded and injured him.

Three witnesses were examined touching the point, the plaintiff being one of them, and in his evidence he stated that, whether the cans were over the fire or close up to the fire witness could not state; who put the cans there witness could not state; but witness had seen White putting giant powder into the cans; "I do not know whether the can in which the powder was was on the fire or close to it; I did not see White put the powder into the can at this time; I saw him put it there at other times."

Christopher Donnelly, another witness, testified that when the powder exploded the can containing it was on the ground five or six feet away from the fire; he says the can was on the fire a couple of minutes; he does not know who took it off, but supposes White did; saw him put it on; that "about a half hour after I saw him put it on, I saw it standing five or six feet from the fire; when the explosion occurred the can containing the water and the can containing the powder were not on the fire." Elsewhere this witness also said: "I was shoveling into a wagon, and when I raised up the shovel I saw the blaze; it might be a couple of feet high above the can; it was the powder that was blazing up -- giant powder they call it; I had seen the can there a short time before, exactly how long I cannot say; * * * I had seen giant powder thawed out before; I saw John Scanlan thaw it out; he boiled the water, took it away from the fire, put the giant powder into it till it got soft; I never saw anybody but Alexander White set powder on fire; * * * the can of powder, when it was blazing, was not on the fire; * * * the can had been on the fire with another can before it was taken off; how long before that I cannot say; I saw the powder blazing right across from me; the fire was made partly of old railroad ties, some pine to start it with; I cannot say whether the wood was blazing or not; when I saw the blaze it was at the powder can; the powder can was on the ground; I cannot say exactly how far from the fire the can was; I guess about five or six feet; there was not much wind; I did not notice whether the fire was blazing; after seeing the blaze I saw it explode in a short time; * * *...

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