Batesell v. American Zinc, Lead & Smelting Company
| Decision Date | 19 December 1918 |
| Citation | 207 S.W. 742,276 Mo. 210 |
| Parties | CLARA BATESELL et al., Appellants, v. AMERICAN ZINC, LEAD & SMELTING COMPANY |
| Court | Missouri Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Jasper Circuit Court. -- Hon. Joseph D. Perkins, Judge.
Reversed and remanded.
L. V. McPherson and James A. Potter, for appellants.
Thomas Hackney for respondent.
We have carefully read the majority and minority opinions delivered by the Springfield Court of Appeals in this case reported in 190 Mo.App. pages 231 and 254, respectively.
The majority lays too much stress upon the fact that the use of dynamite is a dangerous business, known to all, which the deceased should have borne in mind, and should have avoided the danger incident to its explosion. In one sense that it true, but in the sense in which the deceased was handling it, it is not true. For instance, I know it is dangerous to be around while dynamite is being exploded, and I also know that it is comparatively harmless when the fuse attached thereto is not ignited and it is otherwise properly handled, but I have no knowledge as to the proper manner of handling it, much less of the evidence that the fuse is on fire. Therefore, if I should approach a stick of dynamite without knowing that the fuse was on fire and had no knowledge of the evidences showing that fact, it could not be correctly stated as a matter of law that I was guilty of negligence in approaching it, even though the fuse was in fact on fire at the time; but, upon the other hand, if I had been familiar with the evidences that it was on fire at the time I approached it, then unquestionably I would have been guilty of negligence. The same is true of the deceased. The evidence tends to show that he had no knowledge of the proper manner of handling dynamite and on account of inexperience he possessed no knowledge whatever of the evidences showing the fuse was on fire at the time he was injured, which, the evidence tended to show, would have been readily discovered by an experienced person.
Under those facts the law is plain as shown by the authorities cited by both the majority and minority opinions mentioned that it was the duty of the defendant to have instructed the deceased of the dangers complained of and have informed him how to have detected the evidences thereof.
With the foregoing preliminary observations, and after a thorough investigation of the record in this case and the authorities cited by counsel on each side, we are of the opinion that the minority opinion correctly declares the law of the case, and we, therefore, overrule the majority opinion and adopt the minority as the opinion of this court.
For the reasons stated, the judgment is reversed, and the cause remanded to the circuit court to re-try the case in harmony with the views herein expressed.
All concur, except Graves, J., who dissents, and concurs in Commissioner Railey's opinion.
Per Curiam. -- The above opinion of Woodson, J., is adopted by Court in Banc as its opinion. Bond, C. J., Walker and Blair, JJ., concur; Williams, J., dissents; Faris and Graves, JJ., dissent, and concur in opinion of Railey, C.
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On November 17, 1914, Clara and Norvell Batesell, minors under the age of fourteen years, brought this suit through their guardian and curator, in the circuit court of Jasper County, Missouri, to recover of defendant the sum of $ 7000, as damages, alleged to have been sustained by them on account of the death of their father, who was killed in defendant's lead-and-zinc mine in said county, on the evening of August 21, 1912, by the explosion of what is denominated at the trial as a "boulder pop." The case was tried before a jury, and at the conclusion of plaintiff's evidence a peremptory instruction was given in behalf of defendant. Plaintiffs thereupon took an involuntary nonsuit, with leave, etc. The case was duly appealed by them to the Springfield Court of Appeals. The latter, in opinion by Farrington, J., concurred in by Robertson, P. J., affirmed the judgment of the trial court. Sturgis, J., filed a dissenting opinion, and the cause was duly certified to this court upon his request. Both opinions are reported in full in 190 Mo.App. 231 et seq.
I. We have carefully read, with a great deal of interest, the able and exhaustive opinions, as well as the records and briefs on file in the case. We think the facts as stated in the majority opinion are sustained by the record, and that the views expressed therein, by the majority of the Court of Appeals, properly declare the law of the case. With some additional observations, we hereby adopt the majority opinion, as published in 190 Mo.App. 231, et seq. as the opinion of this court.
II. Aside from the views expressed by Judge Farrington, we are of the opinion that the judgment below was for the right party and should be affirmed, for the following reasons: First, because the alleged negligence of defendant was not the proximate cause of the death of Batesell. Second, because the voluntary, negligent, independent and intervening act of Batesell, in unnecessarily and heedlessly risking his own life upon an uncertainty as to whether his fuse was lighted, should be recorded as the proximate cause of his death,
He knew he had attempted to light the fuse; that he had applied his lighted lamp thereto in order to light it. He thought he had lit it, at the start, and gave the usual signal of "boulder pop," after Merritt had called his warning. When, therefore, Batesell emerged from behind the pillar, immediately after Merritt's shot was fired, he asked Aubuchon for a light, and stated that he was going to light his pop as it had not been lighted. He must have known that if the fuse had been lighted it would cause him injury, should an explosion follow. He was warned by his companion, Aubuchon, from whom he borrowed the light, to wait, but ignored his own safety, and took chances upon an uncertainty, when by waiting as advised to do, he would have sustained no injury. His own independent, intervening negligent act, under the circumstances aforesaid, should be held as the proximate cause of Batesell's death. [1 Cooley on Torts (3 Ed.), secs. 75-6-7, pp. 101-104; Beach on Contributory Negligence (3 Ed.), sec. 35, pp. 50-1; 1 Shearman & Redfield on Negligence (6 Ed.), sec. 25, pp. 47-8; Webb's Pollock on Torts (Enlarged Am. Ed.), pp. 29-31; 1 White on Personal Injuries, sec. 25; Henry v. Ry. Co., 76 Mo. 288 at 293; Sira v. Wabash Ry. Co., 115 Mo. 127, 21 S.W. 905; Haviland v. Ry. Co., 172 Mo. 106; Hutchinson v. Ry. Co., 161 Mo. 246; Murray v. St. Louis Transit Co., 176 Mo. 183 at 189, 75 S.W. 611; Schmidt v. Railroad, 191 Mo. 215; Hutchinson v. Ry. Co., 195 Mo. 546; Mockowik v. Railroad, 196 Mo. 550; Craine v. Metropolitan St. Ry. Co., 246 Mo. 393, 152 S.W. 24; Rollison v. Railroad, 252 Mo. 525; Logan v. Ry. Co., 96 Mo.App. 461; Ry. Co. v. Calhoun, 213 U.S. 1; St. L. & I. M. Ry. Co. v. McWhirter, 229 U.S. 265, 57 L.Ed. 1179, 33 S.Ct. 858; Cole v. G. S. & L. Society, 124 F. 113.]
In 1 Cooley on Torts (3 Ed.), pages 101-2-3-4, the rule of law in respect to this subject, is very clearly and forcefully stated, as follows:
In 1 White on Personal Injuries, sec. 25, p. 27, it is said:
"When a new, independent cause, not under the control of the alleged wrongdoer, intervenes between the alleged wrongful act and the injury, if such intervening cause is not a consequence of the original wrongful act and could not have been foreseen by the exercise of ordinary care and but for such intervening cause, the injury to the plaintiff would not have resulted, then the intervening cause will be taken to be the proximate cause of the injury and no recovery can be had from the party who is not responsible for such independent cause."
In Henry v. Ry. Co., 76 Mo. 288, plaintiff was directed to get into a certain caboose in which he could be hauled with his stock. It was dark and plaintiff entered the caboose, but was told by some one therein to get out, as the train was not made up. He left the caboose without injury, and in order to be near his stock concluded to get up on the end of a flat car and wait until his train was ready. While standing with his back to the flat car, the latter was struck with another car and ran over plaintiff. He charged in his petition that he had a right to be in the caboose and was wrongfully...
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