Behncke v. Mitchell Clay Mining Company
| Citation | 175 S.W. 271,189 Mo.App. 639 |
| Parties | MINNIE BEHNCKE, Respondent, v. MITCHELL CLAY MINING COMPANY, Appellant |
| Decision Date | 06 April 1915 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.
Judgment affirmed.
Watts Gentry & Lee for appellant.
(1) The court erred in overruling the defendant's demurrer to the evidence because: (a) There was no evidence that the defendant was neglectful in the way in which it maintained any portion of its mine intended for the use of deceased or so situated that in the line of his duty he would be exposed to danger therefrom. (b) The deceased was guilty of contributory negligence, directly causing his death. (c) A servant cannot go into a place not intended for his use, nor furnished as such by the master, and rely upon that place being kept safe by the master. The master owed him no duty to keep the wire in question insulated, for it was situated six and a half feet above the ground and in a place where deceased had no duty whatever to perform. 4 Thompson on Negligence, secs. 3749, 4677, 4679; Stagg v. Edward Westen Tea & Spice Co., 169 Mo. 489; Chamlee v Planters Hotel Co., 155 Mo.App. 144; Lenk v. Kansas & Texas Coal Co., 80 Mo.App. 374; Duvall v. Packing Co., 119 Mo.App. 150; Leffler v. Brewing Assn., 127 Mo.App. 488; Labatt on Master & Servant (1 Ed.), sec. 633; Railway Co. v. Probst, 85 Ala. 203; Allen v. Hixson, 111 Ga. 460; Railway v. Guyson, 122 Ala. 231; Mellor v. Merchants Mfg. Co., 150 Mass. 362; Railway v. Granite Co., 70 N.H. 125; Railroad v. Adams, 105 Ind. 551; McCue v. National Starch Mfg. Co., 142 N.Y. 106; Thomson v. Babcock, 68 Mich. 523; Felch v. Allen, 98 Mass. 572; Railroad v. Chapman, 96 Ga. 769; Railroad v. Carr, 95 Ill.App. 576. (2) The court erred in giving instruction number 1 at plaintiff's request.
Holland, Rutledge & Lashly and Roebke & Clay for respondent.
(1) The lower court did not err in refusing to give a peremptory instruction at the instance of appellant. (a) The duty of the master to furnish safe premises in which to work is not confined to the identical situs of the labor, but 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 employees in connection with the service. Jackson v. Butler, 249 Mo. 342; Young v. Oil Co., 185 Mo. 634; Coal Mining Co. v. Robinson, 150 Ky. 707; Warren v. Mfg. Co., 173 Mo.App. 116; Birmingham Mills v. Rockhold, 143 Ala. 115; Parkinson Sugar Co. v. Riley, 50 Kan. 401; Domestic Coal Co. v. Holden, 103 N.E. 73 (Ind. 1913); Walbart v. Trexler, 156 Pa. 112; Humphreys v. Coal Co., 80 S.E. 803 (W. Va. 1914); Hays v. So. Power Co., 95 S.C. 230 (1913); 4 Labatt, Master & Servant (2 Ed.), 1558. (b) It is the master's duty to use ordinary care to furnish his servant a safe place in which to work and the servant is not charged with the duty of inspecting the place to discover lurking dangers; nor does he assume the risk of defects which are not obvious. Browning v. Kasten, 107 Mo.App. 59; Porter v. Railroad, 60 Mo. 160; Herdler v. Stave Co., 136 Mo. 3; Keegan v. Kavanaugh, 62 Mo. 230; Franklin v. Railroad, 97 Mo.App. 473; Thorpe v. Railroad, 89 Mo. 650. (c) Any person who maintains so dangerous and destructive an agent as electricity on his premises where persons may lawfully be must "use every protection accessible to insulate its wires at all places where people have a right to go, and to use the utmost care to keep them so; and for personal injuries to a person in a place where he has a right to be without negligence on his part contributing thereto, it is liable in damages." (d) According to all the decisions in Missouri dealing with actions for injuries resulting from contact with "live" wires in order to make a prima-facie case, it is sufficient to show that the injured person had a right to be where he was when he was injured; that he actually came in contact with the wire and received a shock; and that the defendant knew, or by the exercise of ordinary care might have known that the place at which the injury occurred was a place where it could reasonably expect its employees to be. Campbell v. Springfield Traction Co., 178 Mo.App. 520; Clark v. Railroad, 234 Mo. 396, at 418; Geismann v. Electric Co., 173 Mo. 654; Ryan v. St. L. Transit Co., 190 Mo. 621; Von Geba v. Gaslight Co., 209 Mo. 648; Winkleman v. Electric Light Co., 110 Mo.App. 184; Davenport v. Electric Light Co., 242 Mo. 111; Campbell v. United Rys. Co., 243 Mo. 141; Trout v. Laclede Gaslight Co., 151 Mo.App. 207; Id., 160 Mo.App. 604; Downs v. Telephone Co., 161 Mo.App. 274; Clonts v. Laclede Gaslight Co., 160 Mo.App. 456. (2) The lower court did not err in giving the main instruction asked by respondent. (a) Respondent's main instruction assumed a greater burden than was necessary under the law, as irrespective of the relation of master and servant, the law imposes the utmost degree of care upon those who use and maintain live electric wires, and permits them to be maintained only at the peril of the owner. Any one lawfully upon the premises is entitled to protection from neglect in the matter of insulation. See authorities cited under heading I-a, supra. (b) Appellant cannot complain of an instruction which does it no harm. Campbell v. Springfield Traction Co., 178 Mo.App. 520; Walters v. Denver Consol. El. Co., 17 Colo.App. 192; Winkleman v. K. C. El. Co., 110 Mo.App. 184; Geissmann v. Mo. Edison El. Co., 173 Mo. 654; Johnson v. Railroad, 150 Mo.App. 304; see also cases cited supra. (c) Even if an erroneous instruction is given, the judgment will be affirmed if it be the only one that could have been found consistent with the evidence. R. S. Mo. 1909, sec. 2082; Fitzgerald v. Barker, 96 Mo. 661; Feary v. Railroad, 162 Mo. 75, 109; Barkley v. Association, 153 Mo. 300; Peterson v. Transit Co., 199 Mo. 331, 344; McKinstry v. Transit Co., 108 Mo.App. 12. (3) Out of regard to the instinct of self-preservation the law presumes that Behncke, who is now dead, was in the exercise of ordinary care for his own safety at the time he was killed. The burden rests upon the defendant to rebut this presumption. Flynn v. Railroad, 78 Mo. 195; Buesching v. St. Louis Gaslight Co., 73 Mo. 219, 233; Goff v. Transit Co., 199 Mo. 694, 706; Riska v. Railroad, 180 Mo. 168, 188; Weller v. Railroad, 164 Mo. 180, 199; Stotler v. Railroad, 200 Mo. 109, 146.
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 $ 5000, 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 employee, 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 employee 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 at a depth of about sixty 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 seventy feet in length; that is, this is said to have been the approximate distance between the two entries. This would put the pump about thirty-five feet from the south end of the crosscut, though there is testimony that this distance was about twenty or thirty feet. At the time of the accident a canvass 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...
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