Batesel v. American Zinc, Lead & Smelting Co.

• Citation: 276 Mo. 210,207 S.W. 742
• Decision Date: 19 December 1918
• Docket Number: No. 19221.,19221.
• Court: United States State Supreme Court of Missouri
• Parties: BATESEL et al. v. AMERICAN ZINC, LEAD & SMELTING CO.

207 S.W. 742

276 Mo. 210

BATESEL et al. v. AMERICAN ZINC, LEAD & SMELTING CO.

No. 19221.

Supreme Court of Missouri, in Banc.

December 19, 1918.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Clara Batesel and another, by Grace Batesel, guardian and curator, against the American Zinc, Lead & Smelting Company. From a judgment for defendant, plaintiffs appealed. Affirmed in the Court of Appeals (190 Mo. App. 231, 176 S.W. 446), and certified to this court. Reversed and remanded to the circuit court.

The following is the dissenting opinion of Sturgis, J., in the court below, which is adopted as the opinion of the Supreme Court:

That there is abundant evidence tending to show that plaintiffs' father was inexperienced in the work of breaking large boulders by dynamite is clear. He enlisted in the army at 18 or 19 years of age, and served three years. He returned from this occupation about three months before his marriage to the mother of these plaintiffs. After such marriage he followed farming for the most part, though working for a time as a section hand on a railroad. What little mining work he is shown to have done before his injury, not exceeding two weeks, is shown to have been done as a shoveler, filling dirt and rock broken loose by other men into cans with a shovel and moving these cans on tracks for a short distance to be lifted to the surface. The evidence tends to show that in the mine where he thus worked as a shoveler, such occupation did not involve breaking boulders too large to be handled by means of dynamite, such work being done by men employed specially for that work. There is no direct evidence that plaintiffs' father had the slightest experience in exploding dynamite for any purpose, or that be had at any time prior to his attempt to fire the fatal shot in question ever exploded a shot of dynamite with cap and fuse. It is not shown where he obtained the stick of dynamite used on this occasion except that material for this purpose was kept at hand in various parts of the mine. It is fairly inferable from the evidence that the dynamite was already prepared, or nearly so for firing and exploding, and that practically all the deceased did was to pick up the prepared material, lay it on top of the boulder to be broken, place a shovelful or two of earth on the same, and attempt to light the fuse with his miner's lamp. Some stress is laid on the fact that he did this in the usual and approved way. It is possible, if not probable, that deceased learned how this was done by seeing others do it.

The real danger in using dynamite is of course in exploding the same. In this particular case the danger arose from the fact that the deceased thought the fuse had not been lighted, when in fact it had, and in returning to relight it just at the time it exploded. His every act shows that deceased firmly believed the fuse had not been lighted, though there were signs present indicating to an experienced man his mistake. The evidence shows that it is very dangerous to use dynamite in the manner and for the purpose here shown except by one having knowledge and experience enabling him to avoid or minimize such dangers.

The court should have admitted the evidence showing that in mining operations, as generally carried on in this district, the work of "popping boulders" with dynamite was not intrusted to common laborers, such as shovelers, but to men specially chosen and skilled in this work. This has a tendency to show that such work was recognized by those carrying on this work as requiring special knowledge and skill to minimize such danger, and also as showing that deceased, in applying for and accepting the job of shoveler, was not contracting to break boulders with dynamite or holding himself out as competent to do such work. There is evidence, however, in the record showing that, in the mine where deceased had acquired what little experience he had, he had worked as a shoveler, and such work did not involve "popping boulders" with dynamite; and defendant, by cross-examination of the witnesses, attempted to show that this defendant had employés specially skilled in this work and whose special duty it was to perform the same. There can be no question, therefore, that the evidence tends to establish that the work of breaking boulders by use of dynamite is attended with great danger to one not skilled in such work, and of which an unskilled laborer would be excusably ignorant, and that defendant had knowledge, both actual and constructive, of these facts. It is also apparent that the evidence is sufficient to take to the jury the question of deceased being unskilled in this kind of work and ignorant of the proper method of avoiding its dangers, and that his nonappreciation of the risks involved in doing the acts resulting in his death is excusable.

The only question for serious determination is as to whether there is sufficient evidence to charge defendant with knowledge of deceased's ignorance and inexperience so as to impose on it the duty of warning and instruction as to such dangers. The defendant asserts that, conceding that such work is attended by great danger to one not experienced, and that deceased was in fact inexperienced, yet that deceased, by applying for and accepting this employment, held himself out as being competent to perform these duties and that he contracted to assume the dangers and hazards of the service. 3 Labatt's Master & Servant, § 1145, p. 3032, and section 1148, p. 3050; 1 Bailey on Personal Injuries, § 301, p. 646. This contention, however, is not borne out by the facts of this record nor by the law applicable to such facts. The deceased did not apply for employment involving the use of dynamite to break boulders. The whole evidence is that he applied for a job as shoveler, a work having nothing to do with exploding dynamite, and that such work did not in the mine where he had previously worked, or usually in that district, carry with it the work of "popping boulders" with dynamite. By applying for the work of shoveler, he held himself out as competent to do that kind of work and assumed the risks usual and ordinary in that employment. Nothing whatever was said to him by his employer that in accepting the job of shoveler he would also be required to break with dynamite boulders too large to be handled. He did not hold himself out as competent to do that kind of work or as competent to apprehend and avoid its hazards. He did not contract to assume the risks incident to such hazardous employment.

But it is said that, after deceased applied for and contracted to do the work of a shoveler, on going to work in the mine he must have at once observed and known that the shovelers were doing this additional work of "popping boulders" with dynamite, and that no special employé was provided by defendant to do this work for him. This, it is claimed, was telling him by acts just as strong as by commands that the work of a shoveler included the work of breaking boulders with dynamite, and that he, by then accepting and continuing in the work, accepted the extra duty thus imposed on him, and by so doing must also be held to have accepted the extra hazards. It is apparent, however, that it is not material that deceased was by force of circumstances put to his election on the first day of his work to either quit the employment or accept the extra duty and hazard thus imposed on him. It would not be different if this condition confronted him a week or a month after he began his work, except as it might bear on the question of his experience.

The difficulty with defendant's contention is that it loses sight of the full duty of the master to the servant in reference to warning and instructing an inexperienced servant as to abnormal and extraordinary risks and hazards. It is not generally sufficient that the master merely informs the servant that there is danger or the source from which the danger comes. There must be "such instruction as will enable him to avoid injury." 3 Labatt's Master & Servant, § 1159, p. 30/8. "The instruction and warning must be accompanied with such explanation as will enable the servant to understand it. And where required to perform dangerous work, the master must instruct him fully as to the safest mode of doing such work, and warn him of liability to special danger, of which he is not aware." 1 Bailey on Personal Injuries, § 309, p. 666. The deceased received no instruction so as to enable him to avoid the dangers of using dynamite and, while he doubtless knew that dynamite was dangerous, yet his ignorance of the extent of its dangers and how to avoid same is, by reason of his inexperience, excusable. Porter v. Railroad, 71 Mo. 66, 80, 36 Am. Rep. 454. No employé can be held to assume risks which are unknown to him or dangers which, by reason of his inexperience, he does not comprehend. "A master is prima facie bound to instruct a servant as to all risks which are abnormal or extraordinary and at the same time of such a kind that the servant cannot be held chargeable with an adequate comprehension of their nature and extent, or of the proper means by which to safeguard himself. (The same rule, of course, applies even if the danger is from an extraneous source, and not one arising out of the work itself, provided the master is chargeable with knowledge and the servant is not.) The presumption is that all risks which belong to this category are not known to the servant. Hence, the question whether the servant should have been warned is always for the jury where the evidence is fairly susceptible of the construction that the peril to which his injury was due was one of this description, and there is no positive evidence tending to charge him with actual or constructive knowledge of that peril. This principle is equally applicable whether the risks in question existed at the time when the servant commenced the performance of his...