Anderson v. Missouri Granite & Construction Co.

• Citation: 178 S.W. 737
• Decision Date: 06 July 1915
• Docket Number: No. 17386.,17386.
• Parties: ANDERSON v. MISSOURI GRANITE & CONSTRUCTION CO.
• Court: United States State Supreme Court of Missouri

178 S.W. 737

ANDERSON v. MISSOURI GRANITE & CONSTRUCTION CO.

No. 17386.

Supreme Court of Missouri, Division No. 2.

July 6, 1915.

Rehearing Denied July 17, 1915.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by Theodore Anderson against the Missouri Granite & Construction Company. From a judgment for plaintiff, defendant appeals. Reversed.

Benj. H. Marbury, of Farmington, for appellant. Edward D. Anthony and David M. Tesreau, both of Fredericktown, for respondent.

WALKER, J.

This action was brought in the circuit court of St. Francois county to recover damages sustained by plaintiff for injuries received by him while in the employment of defendant as a drillman in a stone quarry. A trial resulted in a verdict and judgment for plaintiff in the sum of $8,000, from which defendant appealed.

At the time of plaintiff's injuries he was employed as a quarry and drillman in defendant's granite quarries. His experience in this character of work extended over a period of 8 or 10 years, during three of which he had been employed by defendant. On the day he was injured he had been drilling what are termed in mining parlance "Lewis holes"—i.e., holes drilled eight or nine inches apart in a straight line which, when charged, tamped, and fired, were intended to break or blast rock from a ledge. Plaintiff had drilled two of such holes, three or more Inches in diameter and five feet in depth, which he had charged with powder and had attempted to fire them, but only one of them had exploded; he contended that both charges had exploded, but the foreman differed with him as to one of them, and directed him to get the necessary tools and remove the tamping and powder from the one that had not exploded and in so doing to use plenty of water to avoid an accident. The foreman then went elsewhere, saying he would return soon, and plaintiff procured a steel hand drill, and pouring water into the hole he stirred the tamping so as to form a "muck," which was to be swabbed out and thus clean the hole. While thus engaged the charge was exploded, and plaintiff's hands were so mangled that amputation became necessary. The cause assigned for the accident was that the steel drill in stirring it around in the hole, in striking the granite, had caused a spark which ignited the cap and fired the powder, resulting in the explosion. Plaintiff contends that he used the drill directed by the foreman in attempting to clear out the hole, and that it was the one usually employed for this purpose; that he knew if a spark was emitted from the steel drill, striking the granite near the cap, that the latter would explode the charge; that his use of the drill, although known to be dangerous, was due to the fact that he believed the charge had been fired, and that no cap and powder remained in the hole to cause an explosion. The conclusion resulting from his contentions is that he did not assume the danger incident to the work, and that he was not guilty of contributory negligence, and that defendant was negligent in failing to provide a safe place for the plaintiff to work and in furnishing unsafe tools.

Defendant's contentions are that plaintiff was familiar with the work of drilling, loading, tamping, firing, and cleaning out "Lewis holes"; that it was a dangerous undertaking to attempt the removal of a charge from a hole that had not exploded, especially when a steel drill was improperly used therefor; that its foreman did not direct plaintiff to use any particular drill, but that plaintiff knew the one to use for the purpose; that the danger was increased if much water was not used in the operation; and that plaintiff used but little water.

Plaintiff was injured only a few minutes after commencing to clean out the hole. When so engaged he stood erect and "jabbed" the long steel drill Into the hole with seeming force, and as he pushed downward he would give it a twist, described by fellow workmen who saw him as "giving it the gun," a term used to express the act of drilling a new hole, which they thought he was doing. It is further shown that plaintiff, after defendant's foreman left the scene, first procured a small steel drill usually employed to clean out holes which had failed to fire, but this did not suit his purpose, and a few minutes thereafter, while the foreman was still away, he got the long steel drill which he was using at the time off the accident. The defendant claims that this change in the tool used was directly contrary to its foreman's instructions, and that the use of the long steel drill, coupled with the failure to use a sufficient quantity of water to saturate the powder as the tamping was softened, rendered plaintiff guilty of such contributory negligence as to prevent his recovery.

For a more thorough understanding of the case we have set out the substance of the pleadings:

The petition, after the usual formal averments, alleges that the defendant negligently and carelessly ordered and directed plaintiff to remove the contents from a certain drill hole in defendant's quarry, the contents of said hole being composed of explosive substances, which hole plaintiff had theretofore attempted to explode or fire and had failed, and in so directing the plaintiff, defendant assured him that it would be safe for him to remove the contents of said hole by the use of water and a steel drill; that it was, the duty of defendant to provide plaintiff with reasonably safe tools and appliances and a safe place in which to work, but that defendant negligently and carelessly directed plaintiff to use a steel drill to clean out the hole, and failed to provide him with proper and reasonably safe tools and appliances and a place to work, and negligently instructed plaintiff to use said steel drill in the manner aforesaid; that the tools, appliances, means, and place of work furnished by defendant and directed to be used by plaintiff were known by defendant to be unsafe and dangerous in the performance of the work imposed on plaintiff, and that by the exercise of reasonable care defendant might have known the use of said tools and appliances by plaintiff in cleaning out said hole in the manner directed by defendant would be unsafe and dangerous; that plaintiff, in pursuance of said order and instructions, and with the assurance of safety by the defendant, started to remove and clean out the contents of said hole with the tools, means, and appliances and at the place so furnished by defendant and under its direction. When the said drill came in contact with the sand, gravel, metallic cap, and stone walls of said hole it generated a spark of fire, ignited the powder, and without warning the contents of said hole were discharged with force and violence, severing both of plaintiff's hands at the wrists, by reason of which he suffered the loss of both hands and much pain and bodily injury therefrom and has been incapacitated from performing manual labor by reason of said accident, and will in the...