Knorpp v. Wagner

• Decision Date: 20 April 1906
• Citation: 93 S.W. 961,195 Mo. 637
• Parties: KNORPP v. WAGNER et al., Appellants
• Court: Missouri Supreme Court

93 S.W. 961

195 Mo. 637

KNORPP v. WAGNER et al., Appellants

Supreme Court of Missouri, Division One

April 20, 1906

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Reversed.

Thomas & Hackney for appellants.

(1) The court erred in admitting evidence over defendants' objection to the effect that failed shots could be tested by exploding powder or squib shots in them. It appeared from plaintiff's evidence that he had not asked permission to test the hole in question in that manner and further that the reason for not using squib shots in defendants' mine was that the mine was not sufficiently opened up to have an air shaft and the firing of squib shots would foul the air so that workmen could not remain in the ground. Plaintiff testified that he knew the method of inspecting failed shots was with a miner's spoon, that that was the method adopted at all times during which plaintiff worked for the defendants, and plaintiff could not therefore complain because some other method of testing holes had not been adopted. Livengood v. Joplin Lead and Zinc Co., 179 Mo. 241; Blundell v. Mfg. Co., 189 Mo. 559; Bradley v. Railroad, 138 Mo. 302; Hollingsworth v. National Biscuit Co., 88 S.W. 1118. (2) The court erred in giving the first instruction for plaintiff. This instruction erroneously declared that it was defendants' duty to furnish plaintiff a reasonably safe place to work in without regard to the character of the work which plaintiff was engaged in performing. The defendants were required only to exercise reasonable care to make the place reasonably safe considering the nature and character of the work being done. Zeigenmeyer v. Lime, etc., Co., 88 S.W. 139; Livengood v. Lead and Zinc Co., 179 Mo. 229; Bradley v. Railroad, 138 Mo. 293. (3) The court erred in refusing to give the defendants' refused instruction 1. This instruction was the correct statement of the law and should have been given. It was shown by plaintiff's admissions, as well as by the other evidence that the head machine man was required by defendants to inspect all holes drilled by him and that no one else was intrusted with this very important duty; that this had been the rule in defendants' mine during all the time plaintiff worked there. It is obvious that it was absolutely necessary for defendants to intrust that particular work to some person skilled in drilling, loading, firing and inspecting holes, and having been intrusted to the plaintiff as head machine man and having been performed by him while in defendants' employ, plaintiff could not complain because it had not been intrusted to some other person nor could he complain of the character of the inspection made by himself. His inspection, therefore, was defendants' inspection. Livengood v. Lead and Zinc Co., 179 Mo. 229; Beford Quarries Co. v. Thomas, 29 Ind.App. 85; Railroad, v. Merriman, 95 Ill.App. 628; Jarvis v. Drake, 97 Ill.App. 153; Pioneer M. Co. v Thomas, 133 Ala. 279; Railroad v. Graham, 94 Ala. 545. (4) The court erred in refusing defendants' refused instruction 3. If plaintiff knew he was in a better position to determine the danger than the ground boss was and knew that he was more familiar with the nature and character of the drill hole, he had no right to rely on any supposed superior judgment of the ground boss when he knew that that judgment was not and could not be as good as his own. It was the grossest negligence of his own safety for him to go into danger which he himself fully appreciated and he knew the ground boss did not appreciate and he, therefore, took his chances and assumed the risk of his own rash act. Kean v. Detroit Copper, etc., Mill, 66 Mich. 277; Davis v. Railroad, 107 Ala. 626; Coosa Co. v. Williams, 133 Ala. 606; Last Chance Mining Co. v. Ames, 23 Col. 167; Duval v. Hunt, 34 Fla. 85; Roul v. Railroad, 85 Ga. 197; Bell v. Railroad, 70 Ga. 566; Baker v. Railroad, 68 Ga. 706; Writt v. Lumber Co., 91 Wis. 496; Smith v. Railroad, 44 Minn. 17; Patterson v. Railroad 76 Pa. 393; Railroad v. Duffield, 12 Lea 63; Jones v. Railroad, 11 Tex. Civ. App. 39; Bradshaw's Adm'r v. Railroad, 21 S.W. 346. If the plaintiff knew that neither the ground boss nor superintendent had inspected the hole and that the only inspection which had been made was made by the plaintiff, he had no right to rely upon any assurances of safety from either of them. Shawalter v. Fairbanks, 88 Wis. 381. (5) The court erred in refusing to give defendants' demurrer to the evidence offered at the close of plaintiff's case and renewed at the close of all the evidence.

McAntire & Scott for respondent.

(1) The court did not err in admitting evidence to the effect that the usual and customary method used in the mining district to inspect or test failed shots is to explode a squib shot or primer in them. If there was any error it was in refusing plaintiff's instructions submitting this issue to the jury, but that was in appellant's favor, the court narrowing the issues. Neither did the court err in refusing the instruction asked by the defendant to exclude this evidence from the consideration of the jury. Plaintiff's petition contained an allegation to the effect that defendants negligently refused to permit plaintiff to use such appliances and precautions. Plaintiff's evidence shows that plaintiff had first asked permission of defendants to test the hole in question by exploding powder or a squib shot in it and that permission was refused, they replying that there was no danger in that old hole, that the powder was all exploded, that it was all right and for Knorpp to go ahead and drill there. Hurst v. Desloge L. Co., 104 Mo.App. 389; Jones v. Railroad, 178 Mo. 549; Omelia v. Railroad, 115 Mo. 205; Huhn v Railroad, 92 Mo. 440; Kane v. Falk Company, 93 Mo.App. 215; Wigmore on Evidence, sec. 461; Labatt on Master and Servant, secs. 43 and 213; Mason v. Mining Co., 82 Mo.App. 370. (2) (a) The instruction required plaintiff to prove all that the law requires to entitle him to recover, and if there was any error in that instruction it was in appellants' favor, in that it required plaintiff to prove even more than the law requires under such evidence as there is in this case. The first part of the instruction meets appellants' first and second objections because it defines defendants' duty to plaintiff to be the use of ordinary care in inspecting the drift where plaintiff worked so as to render the same reasonably safe in which to work. Herdler v. Buck Co., 136 Mo. 3; Streebe v. Iron Foundry Co., 85 Mo.App. 640; Dewesse v. Meramec M. Co., 54 Mo.App. 476; Dewesse v. Meramec M. Co., 128 Mo. 425; Nicholds v. Plate Glass Co., 126 Mo. 56; Bender v. Railroad, 137 Mo. 250; Hamilton v. Coal Co., 108 Mo. 364; Fisher v. Central L. Co., 156 Mo. 479. (b) The instruction does not overlook the rule of assumed risk, for it tells the jury that they can not find for the plaintiff if they find that the danger, if any, at said place was so open, apparent or glaring that a man of ordinary prudence would have seen or observed said danger and would have refused to work there. Under the evidence in this case we think that the instruction was correct. Hamilton v. Coal Company, 108 Mo. 364; Shortel v. St. Joseph, 104 Mo. 114; Streebe v. Iron Foundry Co., 85 Mo.App. 640; Adams v. Coal Company, 85 Mo.App. 486; Stevens v. Railroad, 86 Mo. 221; Herriman v. Railroad, 27 Mo.App. 435; Bane v. Irwin, 172 Mo. 316; Dewesse v. Meramec Mining Co., 54 Mo.App. 476; Dewesse v. Meramec Mining Co., 128 Mo. 425; Stephens v. Railroad, 96 Mo. 207; Keegan v. Kavanaugh, 62 Mo. 230; Fugler v. Bothe, 43 Mo.App. 44; Lucey v. Oil Co., 129 Mo. 32; Doyle v. Trust Co., 140 Mo. 1. (c) The instruction requires the jury to find that plaintiff exercised ordinary care on his part, and was acting without knowledge of the danger. It required plaintiff to prove even more than the law requires in that it required that the jury must find that the plaintiff acted without knowledge of the danger. An instruction which requires the jury to find more than was necessary for them to find in order for plaintiff to recover, affords no ground of complaint for defendants. Seawell v. Railroad, 119 Mo. 222; Hurst v. Railroad, 163 Mo. 309; Franklin v. Railroad, 97 Mo.App. 473; Weston v. Mining Co., 105 Mo.App. 702; Smith v. Mining Company, 75 Mo.App. 177; Cardwell v. Railroad, 90 Mo.App. 31; Henderson v. Kansas City, 177 Mo. 477. (3) The first of appellant's refused instruction was properly refused by the court for the reasons: First. All of the evidence in behalf of plaintiff was to the effect that it was the ground foreman's duty to inspect the drill holes. Second. Even if this court should still hold, as it did in the case of Livingood v. Zinc Mining Company, 179 Mo. 229, that defendants could delegate their positive duty of inspection of the place of work., etc., and so escape their liability, still the instruction should not have been given because plaintiff's evidence was to the effect that defendants had never ordered in any manner any one but the ground foreman to do the inspecting, and that while the drillmen did the inspecting, they did so, not because it was their duty, but did so for their own safety, when the ground foreman did not do so. Third. The instruction was further improper because the issue upon which the court confined plaintiff by his instruction, and upon which plaintiff was required to recover, was not whether or not there had been a failure of inspection by any one, but whether defendants had negligently commanded plaintiff to work in an exceptionally dangerous place, after being assured of the safety of the place where they had commanded him to drill. Bayne v. Irwin, 172 Mo. 306; Carter v. Baldwin, 107 Mo.App. 217. (4) The court did not err in refusing to give defendants'...