Behncke v. Mitchell Clay Mining Co.

• Decision Date: 06 April 1915
• Docket Number: No. 13943.,13943.
• Parties: BEHNCKE v. MITCHELL CLAY MINING CO.
• Court: Missouri Court of Appeals

175 S.W. 271

189 Mo. A. 639

BEHNCKE v. MITCHELL CLAY MINING CO.

No. 13943.

St. Louis Court of Appeals, Missouri.

April 6, 1915.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Minnie Behncke against the Mitchell Clay Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee, of St. Louis, for appellant. Holland, Rutledge & Lashly and Roebke & Clay, all of St. Louis, for respondent.

ALLEN, J.

This is an action brought, under section 5426, Revised Statutes 1909, by the widow of one William A. Behncke to recover damages for his death. The deceased was in the employ of defendant corporation, working in a clay mine, and it is charged that his death resulted from defendant's negligence in respect to maintaining electric wires therein. There was a verdict and judgment for plaintiff in the sum of $5,000, and the case is here upon defendant's appeal.

The petition charges that defendant, in its mine in which plaintiff's husband was working as its employé, maintained a system of wires charged with electric current, of a high and dangerous voltage, and that plaintiff's husband, while engaged in the line of his duty as an employé of defendant in the said mine, came in contact with one of such wires which had been negligently allowed by defendant to become defective in insulation and dangerous, which condition was known to defendant, or could have been discovered by it by the exercise of due care; by reason whereof plaintiff's husband received an electric shock resulting in his death. The answer is a general denial, coupled with a plea of contributory negligence on the part of the deceased, wherein it is averred that he went to a portion of the mine where he had no duty to perform for defendant, and, while not engaged in the performance of any duty pertaining to his employment, negligently took hold of an electric wire with his hands. The reply controverts the new matter contained in the answer.

In the mine in question fire clay was mined .t a depth of about 60 feet below the surface. The mine was entered by an inclined entry extending toward the north, which gradually sloped down to the depth at which the clay was obtained and then continued horizontally along the stratum of clay which was being mined. From this main entry other so-called entries ran east at certain intervals, parallel to each other and at right angles to the main entry, and these in turn were intersected by "crosscuts" running north and south. Plaintiff's husband was working in the first of these entries extending to the east, and not far beyond the south end of one of the crosscuts which extended north and connected this entry with the next one parallel to it. It was in this crosscut that he met his death, on August 17, 1912.

This particular crosscut had been worked out, i. e., the clay removed therefrom, and in it was installed a mine pump, operated by electric power, the current being brought in over wires strung along the entry in which plaintiff's husband was working, and extending into the crosscut to the pump which, it is said, was located at or near the center of the crosscut, i. e., approximately midway between the two entries connected by the latter. The crosscut was estimated to be about 70 feet in length; that is, this is said to have been the approximate distance between the two entries. This would put the pump about 35 feet from the south end of the crosscut, though there is testimony that this distance was about 20 or 30 feet. At the time of the accident, a canvas curtain hung in this crosscut near the south end thereof, where it met the entry in which plaintiff's husband worked; the purpose of the curtain being to aid in controlling the circulation of the air in the mine by deflecting the air current into that portion thereof in which active operations were then being conducted. This curtain hung back in the crosscut a distance estimated by the witnesses to be 10, 12, or possibly 15 feet from its opening into the entry where plaintiff's husband was engaged in his work. The evidence is that the miners were accustomed to hide their tools in this crosscut back of the curtain mentioned, so that they would not be taken by men working on another "shift." It appears that cool water would collect in shallow pools in the crosscut, and it was shown that the miners were accustomed to take their water jugs, which they would fill before entering the mine, into the crosscut back of the curtain, and stand them in this water in order to keep their drinking water cool.

On the day in question plaintiff's husband ate his lunch upon the surface in company with a fellow workman. The latter testified that the deceased asked him if he was going to use his water jug in the afternoon, and that he said that he was not. Plaintiff's husband evidently took and used this jug, for it was afterward found near him in the crosscut, where he was killed. About half past 3 o'clock in the afternoon, two fellow workmen of the deceased, hearing the latter's cries for help issuing therefrom, ran into the crosscut behind the curtain, and found the deceased holding by both hands to an electric wire from which he was receiving a current of electricity into his body, and from which he was unable to free himself. According to the testimony, he was only 3 or 4 feet from the curtain, and was in a more or less stooping position, "with his hands up," holding to the wire, the water jug being near his feet. With considerable difficulty, and after one of them had been shocked and thrown to the ground, the workmen succeeded in releasing him. He was at once taken from the mine, but died before reaching the surface.

Reference will hereinafter be made to certain further details of the evidence adduced by plaintiff, in connection with the discussion of the particular question to which it is pertinent. Defendant offered no testimony, but stood upon its demurrer to the evidence interposed at the close of plaintiff's case, and assigns here as error the action of the trial court in overruling the same and permitting the case to go to the jury.

I. It is earnestly insisted by learned counsel for appellant that plaintiff is not entitled to recover for the reason that the evidence shows that her husband was not, at the time of his death, engaged in the performance of any of the duties of his employment, but had stepped aside therefrom in going into the crosscut; and that the defendant owed him no duty to exercise any care with respect to keeping safe the place in which he met his death.

It is quite true that the rule is that the master is liable to a servant only as he would be to a stranger, when he has performed his full duty with respect to exercising reasonable care to keep the premises at and about which the servant is required to work in a reasonably safe condition, and the servant so far steps outside of the line of his duty that the relation of master and servant may be regarded as having been thereby temporarily suspended. But this rule, we think, can have no application here. The rule requiring the master to furnish the servant a safe place in which to work, and safe premises, "is not restricted to the identical situs of the labor, but extends to the exercise by the employer of ordinary care to see that the means of egress and ingress are ordinarily safe, and extends to all places about the premises known to the master to be used, or which might by the use of ordinary care be so known to be used, by the employés." (Italics ours.) Jackson v. Butler, 249 Mo. 342, 155 S. W. 1071. In the case just cited the servant was injured while seated upon a beam lying on an inclined platform or runway, in a passageway in which some repairs were then being made, and which led from the rear of the building in which he was working, to an alley. He had seated himself there to eat his lunch, and, having finished doing so,...