Britt v. Crebo

• Decision Date: 04 December 1917
• Docket Number: No. 18523.,18523.
• Citation: 199 S.W. 154
• Parties: BRITT v. CREBO.
• Court: Missouri Supreme Court

199 S.W. 154

BRITT v. CREBO.

No. 18523.

Supreme Court of Missouri, Division No. 2.

December 4, 1917.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by Edward L. Britt against Edward Crebo. Judgment for defendant, and plaintiff appeals. Affirmed.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant. J. C. Rosenberger, of Kansas City, and Marvin E. Boisseau, of St. Louis, for respondent.

WALKER, P. J.

This was an action for personal injuries brought in the circuit court of Jackson county. Upon a trial a verdict was rendered for the defendant. From the judgment rendered thereon plaintiff appeals.

The actionable negligence charged in the petition is that plaintiff did not know, and that defendant's foreman did know, or by the exercise of ordinary care could have known, the dangerous character of the contents of a drill hole which the plaintiff was directed by the foreman to clean out, and the explosion of which caused plaintiff's injury.

Plaintiff, a man 40 years of age, had been employed by defendant in loading and shooting charges of dynamite and powder for about six months prior to his injury. Plaintiff and others were engaged in what is termed springing or spreading drill holes with dynamite. By this is meant the making of a pocket or chamber at the bottom of a drill hole with the explosive named, sufficiently large to contain a quantity of black powder which on being detonated will shatter the surrounding material whether it be earth or stone. To accomplish this purpose two drill holes six or more feet apart and seven or eight feet in depth had been drilled vertically into the rock and charged with dynamite. It was attempted to simultaneously explode these charges by an electric current. After the explosion plaintiff and the foreman inspected the holes and concluded, as each testifies, that "they," meaning the holes, "looked all right," except that one of them about three feet from the surface was filled with broken particles of stone. Plaintiff, in addition, testified that from the detonation he thought "all the dynamite had gone off," meaning thereby that the explosion had been complete; that "the electric wires had been blown out, and there was present the usual indications that the holes had been shot off." The foreman, while examining the hole in which the obstruction was found with a bamboo stick, sent the plaintiff for black powder. Upon his return he was directed by the foreman to clean out the hole with a steel hand drill. While thus employed at one of the strokes of the drill the explosion occurred from which plaintiff was injured.

The testimony of several witnesses of much experience in the character of work here in evidence is to this effect: That where an electric wire is found blown out of a hole, and the rock around the top of same is shattered, it indicates that the charge has been exploded. Under such circumstances the usual course pursued is to take a drill and clean out the hole, i. e., drill it out. For this purpose a steel drill or gas pipe may be used. The latter with a steel bit at the end is often employed, because it is heavier.

To rebut defendant's evidence as to the sufficiency of the tests employed the testimony of two quarrymen was introduced. One testified that the foreman when he found the hole obstructed near the top should have cleaned it out by exploding a charge of dynamite on top of the obstruction. The other testified that in the present case this course would have been ineffectual, because an explosion three feet from the surface on the top of the obstruction would not have exploded the dynamite at the bottom of the hole; it being shown that the explosion did not occur following the use of the drill by plaintiff until after it had been driven through several feet of débris.

The case was submitted to the jury under instructions authorizing a finding for plaintiff if they believed from the evidence that "the defendant's foreman did not use ordinary care to inspect and test the obstructed hole and ascertain its condition before ordering plaintiff to drill therein," resulting, as stated, in a verdict for defendant.

I. Testimony Excluded. — Plaintiff contends that he was not permitted to show what tests were usually applied by reasonably careful men to determine the presence of unexploded dynamite in a hole that had been fired. The ruling of the court appears in the following excerpts from the record:

"Plaintiff's Counsel: Q. State the usual and customary tests, if there are any, that reasonably careful men apply under the circumstances I have detailed to you.

"Defendant's Counsel: Objected to because it leaves the witness to say what men are reasonably careful and what are not.

"Plaintiff's Counsel: I know of no other standard to judge by.

"The Court: It will be sustained. He can state what the ordinary tests employed by quarrymen, under those circumstances, are."

No further offer of proof in this regard was made by plaintiff.

In support of this contention, in his brief, plaintiff states that it was intended to prove:

"That the approved and customary test employed by reasonably competent and skillful quarrymen to determine the presence of unexploded dynamite was the use of another stick of dynamite to clear out the hole."

It appears that evidence as to the employment of this test was subsequently brought out by plaintiff in the testimony of the same witness under examination when the objection referred to was sustained. Following the court's ruling, counsel for plaintiff said:

"Very well. I will be glad to adopt the question of the court. Now answer that. A. The ordinary test to find whether there was powder in the hole would be to find the bottom of the hole with a wooden loading stick. Q. Suppose you couldn't get the wooden loading stick down there? A. Well, then I would put in dynamite, if there was anything in there solid enough that I couldn't work it out. I would work out the loose pieces of rock and dirt, and if I couldn't do that I would put in a stick of dynamite and break whatever was there, if there was a little shelf of rock shoved over or anything like that. I would put dynamite in there and break through, and if there was powder in there it would either explode the powder already in there or break that obstruction out so I could put my stick on down."

Another of plaintiff's witnesses who was asked the same question testified as follows:

"A. What I would do, I would test it with what we call a loading stick, and if I couldn't get it down with that loading stick, I always take — I have seen practical men do that — take a half stick of dynamite, attach a fuse to it, or insert it into that stick of dynamite, and drop it down in there and that will do it. Plaintiff's Counsel: Q. What is the custom? A. That is the custom. Q. Now, Mr. Mason, in answering the question, please tell me what the custom is generally among quarrymen in making the test. A. That is the test, that is the practice and it is the custom. If you can't put the stick through it, put a part of a stick of dynamite in that way, and free it with that."

This testimony was contradicted in these witnesses' cross-examination and by that of a number of other experts. The probative force of the testimony on this phase of the case having been determined by the jury, it is not within our province to question the same. The literal excerpts from the record are important, however, to show that the court's ruling did not result in the exclusion of the force and effect of the evidence sought to be elicited by plaintiff, but, while affording him its full evidentiary force, required his counsel to change the form of the inquiry which, if permitted to be answered as asked, would have necessitated a conclusion on the part of the witness, and not a statement of fact. The plaintiff has therefore no just ground of complaint, because the ruling wrought him no injury.

II. Instructions. — Error in the giving of the following instructions is complained of:

"No. 8. The court instructs the jury that, if you believe from the evidence that before telling Britt to drill out the hole at which he was injured there were present and observed by Wulfert (the foreman) all the conditions which, under the same or similar circumstances, ordinarily careful men doing the same or similar work regarded as sufficient proof that there was no unexploded dynamite in said hole, so as to make it safe to drill out said hole, then your verdict must be in favor of defendant."

"No. 10. In determining the question whether or not Wulfert, by the exercise of ordinary care, should have known that there was any unexploded dynamite in the hole when he ordered Britt to drill it out, the jury are instructed that Wulfert was not required to exercise any greater care or take any greater precautions, or to make any further tests, than were ordinarily exercised and applied by ordinarily careful men doing the same or similar work under the same or similar circumstances as Wulfert was doing."

These instructions defined the measure of the defendant's duty, or...