Bennett v. Crystal Carbonate Lime Co.

• Decision Date: 18 January 1910
• Citation: 146 Mo. App. 565,124 S.W. 608
• Parties: BENNETT v. CRYSTAL CARBONATE LIME CO.
• Court: Missouri Court of Appeals

124 S.W. 608

146 Mo. App. 565

BENNETT v. CRYSTAL CARBONATE LIME CO.

St. Louis Court of Appeals. Missouri.

January 18, 1910.

1. MASTER AND SERVANT (§ 107)—INJURY TO SERVANT—SAFE PLACE IN WHICH TO WORK —OBLIGATION OF MASTER.

Where the place in which a servant works is reasonably safe, and it is the particular work done that renders it unsafe, and the dangers are transitory and inherent in the manner in which the work is done, and the servant performs the work in his own way, the rule requiring a master to furnish a reasonably safe place does not obtain.

2. MASTER AND SERVANT (§ 107)—INJURY TO SERVANT—SAFE PLACE IN WHICH TO WORK —OBLIGATION OF MASTER.

Where the place in which a servant works is reasonably safe in itself, and the master negligently orders a servant's act which renders the place unsafe and occasions an injury to the servant, a prima facie liability arises because of the negligent order, unless the dangers are so obvious as to preclude recovery on the theory of contributory negligence or of assumption of risk, considering that the order of the master implies an assumption that the place is reasonably safe.

3. MASTER AND SERVANT (§ 286)—INJURY TO SERVANT — NEGLIGENCE — QUESTION FOR JURY.

A servant in a stone quarry was directed by the foreman to remove a particular rock from a body of stone shattered by blasting. On the removal of the rock another stone supported by it rolled out and injured him. The foreman by the exercise of ordinary care could have seen the probable result, which was not obvious to the servant. The direction of the foreman was peremptory. Held, that the negligence of the master was for the jury.

4. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

The question of the servant's contributory negligence was for the jury.

5. MASTER AND SERVANT (§ 288)—INJURY TO SERVANT—ASSUMPTION OF RISK—QUESTION FOR JURY.

The question of the servant's assumption of risk was for the jury.

6. MASTER AND SERVANT (§ 289)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

A servant doing an act under the express direction of the master's foreman may not be declared negligent as a matter of law, unless the dangers incident to the act are so threatening and imminent as to portray obvious peril, and, where it appears that he may safely perform the act by exercising care on his part, the question of contributory negligence is for the jury.

7. MASTER AND SERVANT (§ 203)—INJURY TO SERVANT—ASSUMPTION OF RISK.

Generally a servant does not assume the risks from the master's negligence, however obvious.

8. MASTER AND SERVANT (§ 222)—INJURY TO SERVANT—ASSUMPTION OF RISK.

A servant must obey the reasonable orders of the master, and, where he is directed to perform a task which apparently he may safely do without injury to himself, he does not as a matter of law assume the risk, especially where the order is repeated in an urgent manner, and the servant is not given an opportunity to reflect, for in assumption of risk there must be present the element of assent, express or implied.

9. MASTER AND SERVANT (§§ 101, 102)—SAFE PLACE TO WORK—OBLIGATION OF MASTER.

The duty of a master to furnish a reasonably safe place in which to work is discharged where he exercises ordinary care in furnishing the servant a place as reasonably safe as the character of the work permits.

10. MASTER AND SERVANT (§ 291)—INSTRUCTIONS—EVIDENCE.

Where, in an action for injuries to a servant in a stone quarry, the evidence showed that the foreman ordered the servant to pry out a rock from a stone ledge shattered by blasting, when by the exercise of ordinary care he could have foreseen the probable result, which the servant could not foresee from his position, necessitating, in order to authorize a verdict for the servant, that the jury find that the foreman knew or by the exercise of ordinary care might have known that the removal of the rock as directed by him would cause another one to fall and injure the servant, an instruction requiring a finding that the master knew that the stone ledge had become insecure and dangerous because of his negligence and liable to fall on and injure the servant was erroneous because of the absence of evidence on which to predicate it.

11. MASTER AND SERVANT (§ 296)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS.

Where the danger to a servant is threatening, glaring, and apparent, the court may determine as a matter of law his contributory negligence, but a jury may acquit the defendant on the ground of contributory negligence where nothing more appears than that plaintiff encountered a risk which a person of ordinary prudence would have avoided, so that an instruction which requires a finding of freedom from contributory negligence unless the conditions around plaintiff were "such as to threaten such glaring, apparent, and immediate danger that a person of ordinary care and prudence would have refused to work" under the circumstances was erroneous.

Appeal from Circuit Court, Lincoln County; James D. Barnett, Judge.

Action by George Bennett against the Crystal Carbonate Lime Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

McKeighan & Watts and W. R. Gentry, for appellant. Dudley & Palmer, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of the defendant. The plaintiff recovered, and defendant appeals.

While in defendant's employ and engaged as a laborer in its stone quarry, plaintiff was seriously injured as a result of a large stone rolling upon his limb. It appears that while he was engaged under the immediate direction of his foreman in prying a particular stone out of a large mass another stone, which had theretofore been held in position by the one which plaintiff sought to remove, was thereby precipitated forward and occasioned his injury. The evidence tends to prove, too, that the act in which plaintiff was engaged at the time did not threaten immediate peril, although the result might have been foreseen by the foreman who directed the work.

To a complete understanding of the case, it will be necessary to state the facts somewhat extensively. Defendant owns and operates a stone quarry in a bluff on the Missouri river in Lincoln county. The quarry faces toward the east, and has been worked from the top of the bluff to a point near about the level of the river bank. The depth of the quarry is about 50 feet. After the stone is quarried, it is reduced to small particles, to the end of running it through a crushing machine. The work of reducing the stone to small particles is done by the laborers with sledge hammers, and this is the work for which plaintiff was employed, although he assisted otherwise about the quarry as well. Through the means of explosives, defendant had separated from the ledge of rock in the bluff a portion thereof, say 40 or 50 feet in length, about 6 or 7 feet in width, and probably the same in depth. This mass of stone, the larger portion of which had been shattered by the blasting, lay upon the floor of the quarry, and the laborers had been engaged for several days in reducing the same and clearing it up for the crusher. It seems the entire mass had been cleared up and disposed of except a portion in the northwest corner of the quarry, which is described to be about 12 feet in length, 7 feet in width, and 6 feet in height. This particular portion of the stone had been severed from the ledge in a solid mass; that is to say, although other portions had been considerably crushed and crumbled as a result of the heavy blast, the portion referred to was lifted bodily from its place in the bluff without being dissevered into fragments. Such, we infer, was a frequent occurrence in the quarry, for it appears to have been the custom in vogue, when the heavy charges of dynamite failed to crumble the rock, large portions like this one were drilled and blasted a second time by what is known as "pop shots"; that is, lesser blasts. A day or two before his injury the plaintiff had assisted another employé in thus drilling and blasting the portion of stone referred to. What is known as "pop shots" were exploded therein and the mass of stone 12 feet long, 7 feet wide, and 6 feet deep was shattered, to the end that it might be reduced for the crusher. It seems that, although this body of stone was cracked and shattered by the "pop shots" referred to, it remained standing as before; that is to say, it was not scattered over the floor of the quarry, but remained in position, shattered and cracked throughout. The plaintiff and other laborers, about a dozen in all, having completed the task of clearing up the floor of the quarry, approached this body of stone with the purpose of dismembering and reducing it. The plaintiff laid aside a shovel with which he had been working, and took up a crowbar for the purpose of prying out portions of the blasted stone which were parcel of the huge mass before him. He hesitated for a moment, as he said, to "hunt it"; that is, as we understand it, he hesitated with a view to looking out a proper place to commence the work.

The men engaged at the quarry each bear a number, by which, instead of by name, they were addressed by the foreman. The plaintiff's number was 12, and the foreman usually so addressed him. Plaintiff says, while he was standing with the crowbar in his hand and viewing the mass of stone or "hunting it," the foreman said, "Twelve, bar out that rock," indicating a particular stone near the corner of the body, and about two feet above the floor of the quarry; that he hesitated an instant longer to make an examination, and the foreman repeated, "Twelve, I tell you to bar out that rock under that one there," whereupon he inserted the crowbar and lifted the stone from its position. Upon the stone which he lifted with his bar receding before the lift another...