Bane v. Irwin

• Decision Date: 24 February 1903
• Citation: 172 Mo. 306,72 S.W. 522
• Parties: BANE v. IRWIN et al.
• Court: Missouri Supreme Court

72 S.W. 522

172 Mo. 306.

BANE v. IRWIN et al.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

MASTER AND SERVANT—INJURY TO MINER— EXPLOSION OF BLAST—ORDER OF MINE BOSS —ASSUMPTION OF RISK—FELLOW SERVANT —WILLFUL INJURY—EXCESSIVE VERDICT.

1. A miner and the mine boss prepared three blasts. The miner lit one and the boss a second, whereupon the miner retired up the shaft, while the boss attempted to light the third. The boss joined the miner, whereupon two explosions occurred. The boss then ordered the miner to return and light the third blast. As the miner reached the blast, it exploded, injuring him. Held, that the miner did not assume the risk.

2. The relation of vice principal borne by a mine boss towards a miner is not altered by the fact that there is a general superintendent, who has supervision of both.

3. The character of the act of a mine boss, in ordering a miner to return and fire a third blast after two have exploded, as an act of superintendence, is not altered by the fact that in preparing the blasts, lighting one, and attempting to light another the boss acted as a fellow servant of the miner.

4. To entitle a miner to recover for the negligence of his boss in ordering him to return, after two blasts had exploded, and fire a third blast, which the boss had attempted to ignite, it is not necessary that the boss willfully concealed the ignition of the third blast, but it is sufficient if it appeared that he had attempted to light it, and sent the miner back without waiting until it could be ascertained whether he had done so.

5. A $6,000 verdict for the loss of both the eyes of a miner 23 years old is not excessive.

Appeal from circuit court, Jasper county; Jos. D. Perkins, Judge.

Action by James Bane against Thomas K. Irwin and another. Judgment for plaintiff, and defendants appeal. Affirmed.

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 & Irwin. The plaintiff was in their employ, working in one of their mines, cutting dirt and blasting. On the 24th of March, 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 foreman in each of said mines. Plaintiff, for his cause of action, alleges: That on said 24th of March, 1899, the said Gibbs, as such ground foreman, 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 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 said 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 eyesight 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 concealed 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 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 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 23 years old at the time of the injury. His physicians testified he was totally blind as a result of his injuries. Immediately prior to the injury the plaintiff had been put to work by his foreman, Gibbs, boring holes in some logs constituting the timbering of an old shaft, which shaft was in the way of a drift being extended underground. After boring the holes in the logs, blasting powder was to be placed in the holes and exploded for the purpose of tearing out the logs and clearing the way for the drift. Plaintiff bored three holes, — one in the lower log, near the ground, on the left-hand side; another in the center log, about two or three feet higher; and another, a third, in another log some two feet still higher, and on the right side of the drift. After boring these holes, he started to bore a fourth hole, when his auger broke. Gibbs, the foreman, came along about that time, and told plaintiff to prepare three shots for the purpose of loading the holes already bored. After preparing these shots, plaintiff handed them to Gibbs, who placed the shots in the holes, Gibbs then directed the plaintiff to fire the left-hand shot, stating that he (Gibbs) would fire the right-hand shot at the same time. The shots were lighted by placing a miner's lamp against the fuse. Gibbs lighted the right-hand shot as plaintiff undertook to light the left-hand shot. The fuse in the right-hand shot caught fire more readily than the one which plaintiff was undertaking to light, whereupon plaintiff took his miner's lamp, and split the end of the fuse on this shot, in order to make it light more readily, and then set fire to it. This was done just after plaintiff observed the right-hand shot spitting. Plaintiff's shot then spit also, which indicated that the fuse was burning pretty rapidly, and that the fire was nearing the powder. Gibbs then stepped over to the center shot, and placed his miner's lamp against the fuse of this shot, while plaintiff walked back into the drift some 12 or 15 feet. Plaintiff saw Gibbs standing in front of the center shot, in the act of lighting it, but could not see from his position whether Gibbs lighted it or not. After working with the center for a few seconds, Gibbs turned to the plaintiff, and said, "Let's get...