Caudle v. Kirkbride
| Decision Date | 05 March 1906 |
| Citation | 93 S.W. 868,117 Mo.App. 412 |
| Parties | HERBERT CAUDLE, Respondent, v. J. W. KIRKBRIDE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
REVERSED.
Judgment reversed.
A. E Spencer for appellant.
(1) It was properly the duty of the workmen to watch the bars, and note the effect of use upon them, and when one needed fixing to send it out for that purpose. The master was not bound to stand by and constantly observe the effect of use upon these wooden plugs. 2 Labatt, Master and Servant (1 Ed.), sec. 621 p. 1816; Herbert v. Ferry Co., 107 Mo.App. 287; Jackson v. Mining Co., 106 Mo.App. 448; Bowen v Railroad, 95 Mo. 277; Zellars v. Water & Light Co., 92 Mo.App. 126, 127; Judson v. Village, 116 N.Y. 655, 22 N.E. 555; Cregan v. Marston, 126 N.Y. 568, 27 N.E. 952; McGee v. Cordage Co., 139 Mass. 445, 1 N.E. 745; Quigley v. Levering, 167 N.Y. 58, 54 L. R. A. 62, 60 N.E. 276; McKinnon v. Norcross, 148 Mass. 533, 3 L. R. A. 320, 20 N.E. 183. (2) Plaintiff and Whittaker had their choice of using the tamping bar with the plug worn by their use, or, if they desired, of sending this bar out and having a new plug put in it. They voluntarily used the worn bar, and therefore plaintiff cannot recover. They knew the condition of the worn bar, while in the very nature of things defendant could not know that condition. If there was any negligence in the use of the bar, it was of the plaintiff and his fellow-servant, and not of the defendant. Whaley v. Coleman, 113 Mo.App. 594, 88 S.W. 119; Moore v. Railroad, 146 Mo. 572; Black v. Railroad, 172 Mo. 177; Lucey v. Oil Co., 129 Mo. 32; Hurst v. Railroad, 163 Mo. 309; Caldwell v. Railroad, 181 Mo. 455; Montgomery v. Railroad, 109 Mo.App. 88. (3) There can be no recovery because the evidence fails to show the cause of the injury, and leaves it a matter of mere speculation. Where an injury may have resulted from one of two causes, for one of which the master is liable, plaintiff must show with reasonable certainty that the cause for which defendant is liable produced the injury. Shore v. Bridge Co., 111 Mo.App. 278, 86 S.W. 905; Browning v. Railroad, 106 Mo.App. 729; Goransson v. Mfg. Co., 186 Mo. 300; Purcell v. Shoe Co., 187 Mo. 276; Trigg v. Land & Lumber Co., 187 Mo. 227.
Shannon & Shannon for respondent.
(1) While the plaintiff and fellow-servant had been furnished with proper tamping bars in the first instance, it is true, as appellant states, that the "use of these bars by the workmen, in the discharge of their duty, necessarily changed from time to time the condition of the bars, particularly by constantly wearing away the plugs in the end of the bars." This imposed upon the appellant the duty to adopt such a system of inspection as would enable him to discover when the bars became dangerous on account of the plugs being too much worn. Robbins v. Mining Co., 105 Mo.App. 78. (2) The copious quotations made by appellant from Cregan v. Marston, 126 N.Y. 568; McGee v. Cordage Co., 139 Mass. 445; Quigley v. Levering, 167 N.Y. 58, and McKinnon v. Narcross, 148 Mass. 533, are not applicable to this case. (3) Under these circumstances, the rule that if the appliance was not in a reasonably safe condition, the master would be chargeable with negligence, and the servant would not be chargeable with contributory negligence, unless the danger from the use of the tool was so apparent that no ordinarily prudent workman would use it, would apply. Minnier v. Railroad, 167 Mo. 113; Booth v. Railroad, 76 Mo.App. 516; Smith v. Coal Co., 75 Mo.App. 177; O'Mellia v. Railroad, 115 Mo. 205; Hamilton v. Mining Co., 108 Mo. 364 (l. c. 374); Huhn v. Railroad, 92 Mo. 440; Conroy v. Iron Works, 62 Mo. 35; Holloran v. Iron & Foundry Co., 133 Mo. 476; Soeder v. Railroad, 100 Mo. 673; Henderson v. Kansas City, 177 Mo. 477; Holmes v. Brandenbaugh, 172 Mo. 53; Connoly v. Printing Co., 166 Mo. 463. (4) It cannot fairly be said that plaintiff and Whittaker had the choice of using the tamping bar with the plug worn by use, or of sending it out and having a new plug put in. The evidence tends strongly to show, and may be said to conclusively show, in view of the finding of the jury and the instructions that plaintiff and Whittaker while working on the night shift were expected to use the plug in the condition in which it was left by the day shift, the wear being so gradual that there was practically no difference between the condition in which it would be left by the day shift and the condition in which it would be left by the night shift. Therefore, the authorities cited by appellant do not apply. (5) This case is not analogous to the cases in which it is held that where an injury may have happened from either one of two causes, for one of which the master is liable and for the other of which the master is not liable, plaintiff cannot recover. In this case the explosion occurred either because the wooden plug in the end of the tamping bar penetrated the "shot" and exploded the cap, or because the wooden plug penetrated the "shot" until the iron portion of the tamping bar reached the powder and exploded the same. In either case appellant was liable, because neither event could have happened if the plug had not been worn to a point.
The plaintiff was injured by the explosion of powder used in blasting in a mine. He charges that the defendant, as master, furnished him an unsafe appliance for tamping the powder in the hole preparatory to a blast. He recovered judgment in the circuit court.
The evidence shows that plaintiff and one Whittaker were fellow-servants working at night in defendant's mine. That a hole had been drilled and they were engaged in what was called "squib" blasting at the bottom of the hole; the object being to make a "pocket" or larger space at the bottom so that it would receive a sufficient charge of explosive to make an effective blast. The implement, or appliance, which is alleged to have been unsafe was a "tamping bar," made of ordinary three-quarter-inch iron gaspipe, eleven or twelve feet long with a wooden plug driven in one end and protruding out about twelve inches; and the only complaint is that this plug was permitted to become worn too small at the end. The hole had been drilled to a depth of nearly eleven feet and some squibs had been exploded at the bottom. Whittaker then began to "load the hole" with "sticks of powder" for the main blast. After getting in several sticks, the hole became partially stopped by some obstruction about five feet from the top, which prevented further loading at the bottom. After endeavoring for some time to remove the obstruction, Whittaker concluded to blow it out by putting a stick of powder down below the obstruction and explode it with a cap and fuse. He and the plaintiff fixed a cap and fuse in a stick of powder and plaintiff inserted it in the mouth of the hole and Whittaker commenced to push it down, on by the obstruction, with the tamping bar and as he was doing this, plaintiff lighted the fuse. Pl...
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