Bennett v. Crystal Carbonate Lime Co.
| Decision Date | 18 January 1910 |
| Citation | 124 S.W. 608,146 Mo.App. 565 |
| Parties | GEORGE BENNETT, Respondent, v. CRYSTAL CARBONATE LIME COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. James D. Barnett, Judge.
Judgment reversed and cause remanded.
McKeighan & Watts and Wm. R. Gentry for appellant.
(1) The court erred in overruling the demurrer to the evidence because: (a) No negligence on the part of defendant was shown; (b) The injury to plaintiff happened by reason of risks assumed by plaintiff in his contract of employment. Clark v. Liston, 54 Ill.App. 578; Mining Co. v Parrish, 74 Ill.App. 559; Allen v. Logan City, 10 Utah 279; Griffin v. Railroad, 124 Ind. 326; Swanson v. Lafayette, 134 Ind. 625; Swanson v Railroad, 68 Minn. 184; Railroad v. Spillman, 34 S.W. 298; Armour v. Hahn, 111 U.S. 313; Ziegenmeyer v. Lime and Cement Co., 113 Mo.App. 330; (c) The injury, according to plaintiff's story was the result of an occurrence which could not have been foreseen by either plaintiff or defendant; and therefore it was a mere accident, for which plaintiff is not entitled to recover. (2) The court erred in giving improper instructions. (a) Instruction p 1, given for plaintiff, is wrong. (b) Instruction p 5, given for plaintiff, is wrong.
Dudley & Palmer for respondent.
(1) There was abundant evidence to take the case to the jury. Both specifications of negligence set up in the petition were proven; proof of either was sufficient. Montgomery v. Railroad, 181 Mo. 508; Wacher v. Transit Co., 108 Mo.App. 645; Holden v. Railroad, 108 Mo.App. 665. A strong inference of negligence arose from the proof in which case it was for the jury to decide. Fogarty v. Transfer Co., 180 Mo. 490; Kielty v. Construction Co., 121 Mo.App. 58; Bane v. Irwin, 172 Mo. 306; Bloomfield v. Construction Co., 118 Mo.App. 254; Adolff v. Pretzel & Baking Co., 100 Mo.App. 212; Baird v. Railroad, 146 Mo. 265. (2) Plaintiff's injury was no accident. Rogers v. Printing Co., 103 Mo.App. 683; Dean v. Railroad, 199 Mo. 386. (3) Plaintiff's first instruction was properly given. Bradley v. Railroad, 138 Mo. 293; Stumbo v. Zinc Co., 100 Mo.App. 635; Kielty v. Construction Co., 121 Mo.App. 67; Knight v. Lead and Zinc Co., 91 Mo.App. 579; Copeland v. Railroad, 175 Mo. 650; Burdoin v. Trenton, 116 Mo. 358; Kennedy v. Transit Co., 103 Mo.App. 1. (4) Plaintiff's instruction number 5 was properly given. It was supported by abundant evidence and has often met the approval of the courts. Holmes v. Brandenburg, 172 Mo. 65; Fogus v. Railroad, 50 Mo.App. 250; Beard v. Car Co., 63 Mo.App. 382; Blundel v. Mfg. Co., 189 Mo. 552, par. 1.
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 or about the level of the river bank. The depth of the quarry is about fifty feet. After the stone is quarried, it is reduced to small parcels, 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 forty or fifty feet in length, about six or seven 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 twelve feet in length, seven feet in width and six 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 employee 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 twelve feet long, seven feet wide and six 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 twelve 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 one supported by it rolled out of the mass upon his leg and inflicted the injury. In this connection plaintiff says that the foreman was standing to the side and in the rear on a slight elevation in a position to see the danger incident to barring out the stone referred to. Plaintiff says from the position in which he himself stood, at the time he was ordered to remove the particular rock and while engaged in the act, it was impossible for him to discover the likelihood of the three cornered stone above and slightly in the rear of the one he removed being precipitated forward upon him, and that the foreman could have seen it from the position he occupied at the time the order was given.
At the conclusion of the testimony on the part of the plaintiff, the defendant requested the court to peremptorily direct a verdict for it. This request having been denied, the defendant introduced no evidence whatever on its part, contenting itself to stand on the proposition that plaintiff had failed to make a primafacie case.
It is argued here that the court should have directed a verdict for the defendant for the reason the testimony fails to disclose a breach of its obligation to exercise ordinary care to the end of furnishing the servant a reasonably safe place to work. Rather, the precise argument is, that in the circumstances of the case, the rule requiring the master to exercise ordinary care to the end of furnishing the servant a reasonably safe place to perform his labor does not obtain and that the plaintiff must be declared to have taken the risk, for the reason he received his injury from a peril ordinarily incident to the employment in which he was engaged. We are not persuaded by this argument on the facts in proof for the reason it appears the defendant retained control of the men and directed their movements in and about the work. This is especially true in this case for the reason it appears plaintiff received his injury while performing the very act which he was directed to perform by defendant's foreman in charge. It is no doubt true that there are cases where the rule requiring the master to furnish the servant a reasonably safe place does not obtain, such, for instance, as where the place in and of itself is reasonably safe and the particular work being prosecuted is one which renders it unsafe. The doctrine is frequently applied to cases where the servant is employed in dismanteling and...
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