Caudle v. Kirkbridge

• Decision Date: 05 March 1906
• Parties: CAUDLE v. KIRKBRIDGE.
• Court: Missouri Court of Appeals

93 S.W. 868

117 Mo. App. 412

CAUDLE v. KIRKBRIDGE.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. MASTER—INJURY TO SERVANT—UNSAFE APPLIANCE— EVIDENCE—SUFFICIENCY.

In an action by a mine employé for injuries alleged to have been caused by an unsafe appliance for tamping powder in a hole preparatory to a blast, evidence examined, and held insufficient to warrant a recovery.

2. NEGLIGENCE—BURDEN OF PROOF.

Where the injury of which complaint is made may have resulted from either of several causes, for only one of which the party sued is liable, it is for the complainant to show with reasonable certainty that the cause for which the party is liable produced the result.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Herbert Caudle against J. W. Kirkbridge. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. E. Spencer, for appellant. Shannon & Shannon, for respondent.

ELLISON, J.

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 ¾-inch iron gas pipe, 11 or 12 feet long, with a wooden plug driven in one end and protruding out about 12 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 11 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 5 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. Plaintiff said to Whittaker, as he was pushing at the powder, "It isn't back yet," when Whittaker answered, "I know it isn't; get in, you son of a bitch," at the same time giving it "a shove," and the explosion immediately followed, killing Whittaker and inflicting injuries upon plaintiff, for which he brought this action.

The day shift at this mine had a mine foreman, but the night shift had none. It was the duty...