Batesell v. American Zinc, Lead and Smelting Company
| Decision Date | 19 May 1915 |
| Parties | CLARA BATESELL and NORVELL BATESELL, by GRACE BATESELL, Guardian and Curator, Appellants, v. AMERICAN ZINC, LEAD AND SMELTING COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number One.--Hon Joseph D. Perkins, Judge.
AFFIRMED. (CERTIFIED TO SUPREME COURT.)
Judgment affirmed. Cause certified to Supreme Court.
J. V McPherson and James A. Potter for appellants.
(1) The court erred in excluding legal and competent evidence offered by the plaintiffs. Overby v. Min. Co., 144 Mo.App 363; Crane v. Railroad, 87 Mo. 595-596; Deeds v. Railroad, 157 Mo.App. 464; Railroad v. Wright, 115 Ind. 378, 16 N.E. 145, and 17 N.E. 584; Peerless Mfg. Co. v. Denham, 15 Ky. Law, 95; Walsh v. Chicago, 94 Ill.App. 311; Schiller v. Breweries Co., 156 Mo.App. 569; Brunke v. Tel. Co., 115 Mo.App. 36; Hunt v. McNamee, 141 F. 293; Holland v. Railroad, 91 Ala. 444, 12 L.R.A. 232; Fortney v. Marble Head Lime Co., 173 Mo.App. 404; Kan. and Tex. Coal Co. v. Brownlie, 60 Ark. 582, 31 S.W. 453. (2) The court erred in sustaining a demurrer to the evidence and in taking the case from the jury. A master is prima facie bound to instruct a servant as to all risks abnormal or extraordinary and 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 question whether the servant should be instructed and warned is for the jury. 3 Labatt, Master & Servant, sec. 1146, p. 3036-46; Same, vol. 3, sec. 1148, p. 3048-9; Osborn v. Adams Brick Co., 99 N.E. 530; Chinn v. Ferro-Concrete Cons. Co., 132 N.Y.S. 850, 148 A.D. 368; Hill v. Libby, 85 App. (Me.) 487; Giordano v. Brandywine Granite Co., 52 App. (Del.) 332; Tenn. Coal, I. & R. Co. v. Jarrett, 82 S.W. 224; Peters v. George, 154 F. 634, 83 C. C. A. 408; Martin v. At. Transport Co., 85 App. 29, 237 Penn. 15; Lavia v. Kountz Bros., 31 Pa. S.Ct. 48; Gammerson v. K. C. Bolt & Nut Co., 171 S.W. 961; Fortney v. Marble Head Lime Co., 173 Mo.App. 404; Brazille v. Caralina Barytes Co., 78 S.E. 215; Railroad v. Daergaard, 118 Ill.App. 67; Railroad v. Valerius, 56 Ind. 511; Penn. Co. v. Long, 94 Ind. 250; Erickson v. Monson Consol. Slate Co., 60 App. (Me.) 708, 100 Me. 107. (3) It is the duty of the master, who finds it necessary to use dangerous agencies in his business, to inform his servants not familiar therewith of the extraordinary risks incident thereto. The duty of warning is said to be especially imperative where the servant is required to handle dangerous explosives. Decatur Cereal Co. v. Boland, 95 Ill.App. 601; Spelman v. Fisher I. Co., 56 Barb. 151; Burrows v. Ozark W. L. Co., 86 Ark. 343; Rankel v. Buckstaff-Edwards Co., 120 N.W. 269; Reickert v. Hammond Pack. Co., 136 Mo.App. 565; Gheron v. Union Carbide Co., 151 Mich. 687, 115 N.W. 718; Pinney v. King, 98 Minn. 160, 107 N.W. 1127; Wood v. McCabe and Co., 151 N.C. 457, 66 S.E. 433.
Thos. Hackney for respondent.
(1) Under the allegations of the plaintiffs' petition the burden of proof was upon the plaintiffs to show not only that Adrian C. Batesel was inexperienced in handling dynamite but also that the defendant had knowledge of such inexperience, and furthermore that knowing his incapacity to do the work of handling and firing the boulder pops the defendant required him to do such work. Nugent v. Kauffman Milling Co., 131 Mo. 241; Smith v. Forrester, Nace Box Co., 193 Mo. 715, 732; Hill v. Meyer Bros. Drug Co., 140 Mo. 440. (2) Even though the affirmative testimony tending to show the experience of the deceased should be disregarded and it should be presumed that he was inexperienced in handling dynamite, yet there is no pretense that the defendant had any knowledge of the alleged inexperience, and hence the defendant is not liable on the theory of its failure to instruct the deceased. Fulwider v. Gas Light & Power Co., 216 Mo. 582-597; Wilks v. Railroad, 159 Mo.App. 725; Murphy v. Rockwell Eng. Co., 70 N.J. L. 374; 57 A. 444; 26 Cyc. 1167. (3) The omission of the defendant to instruct the deceased in regard to perils which he fully appreciated to as great an extent as the defendant could have informed him was not negligence. N. Ala. Coal & Iron Co. v. Beacham, 140 Ala. 422, 37 So. 227.
During the early hours of the night of August 21, 1912, Adrian C. Batesel, a shoveler in defendant's mine number 3 in Jasper county, who was then about twenty-six years of age, was fatally injured while attempting to explode a stick of dynamite. His widow brought this suit for damages as guardian and curator of his minor children. At the close of all the plaintiffs' evidence the court gave a peremptory instruction to find for the defendant, whereupon plaintiffs took a nonsuit with leave, and they have now appealed from an order overruling their motion to set aside the nonsuit.
It is alleged and the evidence shows that Batesel was killed by the explosion of what the witnesses call a "pop shot" while attempting to "pop a boulder." He had prepared the shot in the usual way by placing a stick of dynamite on top of a boulder with a cap and fuse attached. Except for a few exclamations, to which we will later refer, he made no statement before his death.
The basis of plaintiff's complaint against the defendant and the negligence complained of in the petition was in substance as follows: That deceased was employed on August 20, 1912, as a shoveler in defendant's mine. That he was inexperienced in the use of dynamite and ignorant of the dangers and risks encountered in the work of firing shots. That defendant knew this, or by the exercise of ordinary care would have known of his inexperience. That it was not customary for shovelers in that mining district to explode dynamite, but that skilled men were ordinarily kept in the mines for such purpose, and such work, unlike that of shoveling, was extrahazardous. That defendant permitted and required its shovelers in this mine to explode dynamite in addition to shoveling, and that when Batesel was employed he was not informed that he would be required to do this dangerous work. That the defendant failed in its duty to warn and instruct him so as to inform him how to avoid the dangers. That on August 21, 1912, Batesel was negligently required and permitted to explode a "pop shot" and that he did it with reasonable care for one of his experience, but that owing to his lack of knowledge and experience and a failure to know how to avoid the risks he was, through defendant's failure to warn and instruct him, killed while "popping a boulder."
The answer was a general denial and a plea of contributory negligence.
It appears that the gravamen of the charge of negligence is that the defendant knowing that Batesel was inexperienced in the handling and exploding of dynamite, a highly dangerous agency, set him to work without giving him warning that he would be required to handle and explode it and failed to instruct and warn him so that he could take precautionary measures to protect himself.
The charge in the petition contains the three elements necessary to fasten liability upon the defendant, namely: (1) The master had knowledge, actual or constructive, of the existence of the risk. (2) That when Batesel was employed by defendant, because of lack of skill and experience, he did not appreciate the dangers of the employment he was entering upon and was therefore excusable. (3) That defendant knew or should have known that Batesel was unskilled in the handling and exploding of dynamite.
The evidence tended to establish the following state of facts:
Batesel was an adult, endowed with ordinary intelligence, good sight and hearing, and bore no external evidence of any infirmity. He had spent most of his life in pursuits other than mining, but had worked a short time as a shoveler in mines in that district. There is nothing to show that defendant had any knowledge whatever of the past history or experience of the deceased. Defendant operated this mine in which it employed about twenty-five men on the night shift who would shovel into cans the ore and rock which had been broken from the face of the drifts by dynamite shots, and they were paid by the number of cans filled and not for the time they worked. In this mine when in their work the shovelers came upon a boulder they would themselves break it up by what is called a "pop shot," which they would explode by lighting the split end of the fuse with the lamp they carried. When they had lighted the fuse they would give the alarm by shouting "boulder pop," and this was a warning to all workmen in the danger zone to go behind pillars left in the mine. Ordinarily several minutes elapsed before the dynamite exploded after the fuse was lighted. There is evidence in the record that the ordinary custom in that mining district is to have special shot firers employed to explode these shots. The evidence shows that defendant permitted its shovelers to pop their own boulders and knew this was their practice but did have employed on the night shift two experienced men for popping boulders.
We find sufficient evidence to sustain the first element of liability.
On the evening of August 20th, while the ground boss of the night shift and the workmen were waiting for the whistle to blow when they would go down in the mine, Batesel appeared and inquired of the ground boss whether he had an opening for a shoveler and was told yes. The evidence tended to establish that he was given no instruction or warning, and in fact there is nothing shown as to any other conversation had with...
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