Chambers v. Chester

• Decision Date: 04 March 1903
• Parties: CHAMBERS v. CHESTER et al.
• Court: Missouri Supreme Court

72 S.W. 904

172 Mo. 461

CHAMBERS v. CHESTER et al.

Supreme Court of Missouri.

March 4, 1903.

MASTER AND SERVANT—INJURIES TO MINER— PREMATURE EXPLOSION OF BLAST—USE OF HIGHER EXPLOSIVE—NOTICE TO MINER— QUESTION FOR JURY—MATERIALITY—AVOIDANCE OF DANGER—ASSUMPTION OF RISK—INSTRUCTIONS— EVIDENCE OF PLAINTIFF'S MARRIAGE—HARMLESS ERROR.

1. Evidence, in an action by a miner for injuries from the premature explosion of a blast he was loading, held to warrant submitting to the jury the question whether plaintiff had notice that a powder of higher explosive quality had been substituted for that previously used.

2. The testimony of a miner, injured by the premature explosion of a blast he was loading, that he was exercising care, does not render immaterial, and therefore improper for the jury, the question of notice to him that the powder furnished on this occasion was of a higher explosive power and more dangerous than that ordinarily used.

3. In an action for injuries to a miner from the premature explosion of a blast he was loading, his testimony that he had used powder of the explosive quality ordinarily furnished, and had also previously used, without injury, powder of the higher explosive power possessed by that used on the occasion in question, removes from the domain of conjecture a finding that, had plaintiff known of the more dangerous character of the powder employed, he would have been able by increased care to avoid the accident.

4. Evidence, in an action by a miner for injuries from the premature explosion of a blast he was loading, held to warrant submitting to the jury the question whether, had plaintiff known of the more dangerous character of the powder furnished on this occasion, he would not, by increased care, have been able to avoid the accident.

5. A miner, employed in blasting with powder of a certain explosive quality, does not assume the risk incident to a substitution, without notice to him, of a powder of a higher explosive power and more dangerous character; he having a right to rely on the master's performance of the duty of notification.

6. In an action by a miner for injuries from the premature explosion of a blast, the court, at plaintiff's request, instructed that if plaintiff had been furnished with powder containing 27 per cent. of nitroglycerin, but on the day of the accident was furnished with powder containing 40 per cent., which was more dangerous, then it was defendants' duty to notify plaintiff, and if they negligently failed to do this, and plaintiff, not knowing of the change and while in the exercise of proper care, was injured from his want of knowledge, he could recover; also that, if defendants' foreman neglected to notify plaintiff, his negligence would be that of the defendants, and that if a higher grade of explosive was furnished plaintiff without notification, and he did not know of its character, he did not assume the risk. On defendants' behalf, the court instructed that unless the jury believed defendants changed the grade of powder without plaintiff's knowledge, and that he remained ignorant thereof, and that the substituted powder required a higher degree of care in handling, and that the change substantially increased plaintiff's danger and was the proximate cause of his injuries, and that he was free of contributory negligence, they should find for the defendants. Held, that any error in the instructions requested by plaintiff was cured by that given for defendants.

7. The instructions given for plaintiff were not erroneous, as requiring defendants to notify plaintiff, irrespective of his knowledge or opportunity therefor.

8. Neither were they erroneous, as assuming that he was ignorant of the character of the substituted powder, or that he was exercising ordinary care.

9. The instruction that the negligence of the foreman in failing to notify plaintiff was that of the defendants was not erroneous, as authorizing a recovery notwithstanding plaintiff knew of the change, if the foreman failed to notify him thereof.

10. The instruction that plaintiff did not assume the risk, when considered with the instruction given at defendants' request, was not erroneous, as permitting plaintiff to recover if he was guilty of contributory negligence.

11. Where, in an action by a miner for injuries, witnesses on both sides without objection have spoken of and referred to the fact that plaintiff was a married man, the fact that he was permitted to testify that he was a married man does not constitute reversible error.

Robinson, C. J., dissenting.

In Banc. Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Action by Samuel Chambers against V. L. Chester and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The following is the opinion in division:

MARSHALL, J.

This is an action for damages for personal injuries sustained by the plaintiff, while in the employ of the defendants, in their mine in Jasper county, known as the "Hawkeye Mine," caused by an explosion of nitroglycerin, which the plaintiff was loading in a hole that had been drilled in a rock wall, preparatory to blasting, and in consequence of which the plaintiff lost his eyesight. The petition contains three assignments of negligence, two of which the plaintiff offered no evidence to support and the court took them away from the jury, so that the case was tried solely upon the remaining charge which was as follows: "Plaintiff further states that he had, for a long time previous thereto, been in the employ of the defendants, and had been furnished by defendants and had been using giant powder with twenty-seven (27) per cent. only of nitroglycerin; that on the said 20th day of March, 1899, the defendants had carelessly and negligently furnished plaintiff with giant powder containing forty (40) per cent. of nitroglycerin, without notifying or in any wise informing plaintiff and those employed with him in the mine of the change of powder. Plaintiff states that the powder containing forty per cent. of nitroglycerin is much more easily exploded and will explode with much less force than powder containing only twenty-seven per cent., and requires a higher degree of care in the handling, lest the same prematurely explode, and powder containing forty per cent. of nitroglycerin is therefore rarely used in the mines; that while plaintiff, not knowing the dangerous character of the explosive furnished by the defendants for the charging of said drill hole, and believing that he was charging the same with giant powder containing only twenty-seven per cent. of nitroglycerin, and exercising due care while using the said iron bar, was with due care pushing the sticks of powder into place in said drill hole with said iron bar, in the manner that he had been accustomed to do while using powder containing only twenty-seven per cent. of nitroglycerin, the said giant powder, owing to its high explosive character as aforesaid, through the negligence and carelessness of defendants in not notifying plaintiff of the high grade of said explosive and of the necessity of greater care in its use, exploded while plaintiff was engaged in loading said drill hole, by which explosion, by means of the powder, and the pieces of gravel and rock which were thrown into plaintiff's face and eyes, plaintiff was seriously injured and wounded, and his eyesight of both eyes totally destroyed." The answer is a general denial, with special pleas of assumption of risk and contributory negligence. There was a verdict for the plaintiff for $5,000, and the defendants appealed.

Three principal errors are assigned: First, refusal of the court to direct a verdict for the defendants at the close of the plaintiff's case; second, admission of incompetent evidence, to wit, that the plaintiff was a married man; and, third, erroneous instructions given for the plaintiff.

The first assignment of error necessitates a full statement of the evidence, and for this purpose the abstract of the evidence for the plaintiff made by counsel for the defendants is adopted. It is as follows:

"Abstract of the Evidence.

"Plaintiff testified that he was 44 years of age; (over the objection of defendants) that he was married; that he had been working in mines for the last few years, for the defendants about six months before he was injured, and was earning $2.25 per day; that Mr. Sutton was the ground foreman; that he was engaged in cutting— i. e., drilling, exploding, and shooting, in flint ground—flint and jack; that he had been using 27 per cent. giant powder ever since he had been working there, with the exception of a day or two; on day in question was working under directions of Mr. Sutton, who told him he `wanted us to load a hole and shoot it before noon.' He did not specify the amount of powder. The hole was five or six feet deep, in smooth, solid, and flint rock, and `in loading our hole we wanted to get in a good shot, and we concluded we would take off part of the wrapper; that is, what we call "skinning it." We tore off the wrapper until we came to the bottom wrapper, and pushed the powder, then, with one thin wrapper on the powder, around it, and put them in the hole, and took the tamping bar, and slid this down to the back. The hole was almost horizontal; and when we got in quite a little powder, and getting the hole pretty well loaded, one stick seemed to hang on the side of the hole. Mr. Pearson, my buddy, unwrapped the powder and tore off the extra paper we did not want to use, and handed me the powder. I was pushing that one stick which seemed to hang, as carefully as I could, when the explosion occurred. Not informed what grade of powder was furnished me. I knew of no change. I supposed we were using 27 per cent. We had been using it ever since I worked for them, with the exception of a day or two. One time, six or seven weeks before this happened, when Geo. Bartholomew was ground boss, they sent down a higher grade of...