Cunningham v. Doe Run Lead Co.
| Decision Date | 15 June 1926 |
| Docket Number | No. 19242.,19242. |
| Citation | 285 S.W. 757 |
| Parties | CUNNINGHAM et ux. v. DOE RUN LEAD CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.
Action by Hardy Cunningham and wife against the Doe Run Lead Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Clyde Williams, of Hillsboro, C. J. Stanton, of Bonne Terre, and P. S. Terry, of Festus, for appellant.
Joseph J. Cooney, of St. Louis, R. E. Kleinschmidt, of Hillsboro, and Charles E. Morrow, of St. Louis, for respondents.
This is an action for damages for the wrongful death of Ostil L. Cunningham, the minor son of plaintiffs. The defendant is a Missouri corporation, and at the time of the injury which caused the death of the plaintiffs' son was engaged in operating a mine producing lead ore in St. Francois county, Mo., and the plaintiffs' son and the plaintiff Hardy Cunningham were employed as drillmen in blasting or driving a drift in said mine. Ben Wampler and Roy McDowell were employed on the same drift as shovelers. In their employment the plaintiff Hardy Cunningham and his son drilled blast holes in the face of the drift, loaded the holes with dynamite, and discharged the blasts, and Wampler and McDowell followed and cleaned upon the debris resulting from the blasts, inspected the face of the drift for missed shots, and, if they found any, discharged them. On Friday Hardy Cunningham and his son drilled twenty-two holes in the face of the drift, and loaded and fired successively three blasts, and thereupon left the mine. On the following day Wampler and McDowell cleaned up the debris, inspected the face of the drift, and discovered two missed shots, but neglected to fire them or to warn plaintiff Hardy Cunningham or his son of the presence of the missed shots in the face of the drift and of their failure to fire them. On the following morning about 7 o'clock plaintiff Hardy Cunningham and his son returned to the mine and began drilling in the face of the drift, and while so engaged one of the missed shots was discharged, and the plaintiffs' son was thereby killed.
The cause was tried to a jury, there was a verdict and judgment in favor of the plaintiffs for $3,500, and the defendant appeals.
The defendant assigns error upon the refusal of its demurrer to the evidence. In support of this assignment, the defendant contends: (1) That under the evidence defendant was not shown to be guilty of any act of `negligence; (2) that plaintiff Hardy Cunningham was an independent contractor, and the plaintiffs' son Ostil L. Cunningham and the other employés, Ben Wampler and Roy McDowell, were servants of Hardy Cunningham as contractor, and were not the servants of defendant; (3) that plaintiffs' son Ostil L. Cunningham and the other employés, Ben Wampler and Roy McDowell, were fellow servants; (4) that the evidence conclusively shows that plaintiff Hardy Cunningham and his son assumed the risk of the injury complained of; and (5) that the evidence conclusively shows the plaintiff Hardy Cunningham and his son guilty of contributory negligence.
We will state the facts in view of these contentions and in the light most favorable to the plaintiffs that the evidence warrants, allowing the plaintiffs the benefit of such inferences as may be reasonably drawn therefrom.
Plaintiffs' son Ostil L. Cunningham was killed on April 16, 1923. He was slightly more than 19 years of age at that time, and was in the employ of the defendant, having been employed by the defendant's employment agent. He commenced work for defendant on the same day that plaintiff Hardy Cunningham commenced work. The deceased was paid by defendant by the day. He was paid by check. The check was handed to him at one window, and cashed at another window at defendant's office. Frank Murphy, defendant's mine superintendent, employed Hardy Cunningham and directed him to work at drift No. 10. It was agreed that defendant would pay him a minimum wage of $4.20 a day, with a bonus. The drift work was rated at $5 per foot, and, after the expenses of labor and materials incurred in driving the drift were paid, if there was anything left over, Hardy Cunningham received The minimum wage of $4.20 per day was paid him and also a bonus, the amount of which was determined by the number of feet the drift was driven. The bonus was paid by defendant by bonus checks. The bonus checks were marked in red letters "Bonus Check." Hardy Cunningham and the deceased worked together on drift No. 10 as drillmen. They were the only drillmen working on this drift. Holes were drilled into the face of the drift by means of drills operated by compressed air. The drills and the compressed air and all other tools and implements were furnished by the defendant. The drift was 400 feet beneath the surface. It was about 10 feet wide and about 7 feet high. The compressed air was fed through pipes to the drills operated by the drillmen, by machinery operated by defendant on the surface. After the holes were drilled, they were cleaned out and loaded with dynamite. Fuses, which were cut different lengths, were attached to each charge. These fuses were lighted, and then the drillers would get out of the way until the shots were fired. On Friday before the deceased was killed, he and Hardy Cunningham drilled twenty-two holes in the drift, and first loaded four and fired them, and then loaded four more and fired them, and the last time loaded fourteen and lighted the fuses and got out of the way. Hardy Cunningham testified that it was usual to count the number of explosions, and that he counted the explosions on that occasion and thought he had counted correctly, and that all the charges had been exploded, and that he `and his son then went home and did not return to work until the next Monday morning.
There were two different shifts working on this drift. Plaintiff Hardy Cunningham and the deceased were the drillers, and they worked on one shift. Wampler and McDowell, the shovelers who cleaned up the debris knocked down by the blasts, worked on the other shift. Hardy Cunningham and the deceased did not work in the mine at the same time that Wampler and McDowell worked. After Hardy Cunningham and the deceased fired the shots and left on Friday, Wampler and McDowell followed on Saturday on the next shift and cleaned up the debris, and discovered two charges of dynamite in the face of the drift which had not been discharged, but it was pay day, and they were `in a hurry to get their pay and forgot to discharge them. It was one of these charges that exploded and killed the deceased.
Wampler and McDowell had been continuously working for the defendant for several years prior to the accident which resulted in the death of plaintiffs' son. Wampler was employed by Frank Murphy, defendant's superintendent. McDowell was employed by the drift boss. They were paid by defendant by checks given to them at one window and cashed at another in defendant's office. Wampler was directed to work on drift No. 10 by the superintendent, and McDowell was directed to work there by the drift boss.
The defendant furnished the fuses, caps, dynamite, and powder. Cunningham did not furnish anything.
Cunningham had been a miner for about 20 years, was an experienced driller, and had handled dynamite for 15 years. His son was 19 years and 23 days old at the time of his death, and he commenced working at the mine in 1920. He went to work on drift No. 10 in the fall of 1922, and had something like 7 or 8 months' experience as a driller at the time of his death. Wampler and McDowell were experienced miners.
Plaintiff Hardy Cunningham was the only man working on drift No. 10 who got a bonus. He was responsible for his part of the work, but there were no other men who were subject to his orders. He had authority, if a man did not suit him, to go to the shift boss and have the man removed, but he did not have any authority to remove a man himself. He was doing the work in drift No. 10 from the fall of 1922 until April 16, 1923. It was his duty to keep the drift straight. The surveyors and engineers determined the lines, and figured out where the drifts would be made.
Hardy Cunningham, the deceased, Wampler, and McDowell all carried defendant's time cards, and had to use the time cards when they came to work, the same as the other employés. All the men working on drift No. 10 at the time deceased was killed were men that the defendant had formerly employed, and they continued in the employ of defendant up to the time of the death of the deceased. All these men were employed by defendant's superintendent, or with his permission, and could not have been employed, or work there, without his permission, and could not have been discharged without his permission. He reserved the right to discharge Cunningham, or stop the work on the drift, whenever he wanted to.
As already said, the work of driving the drift was prosecuted by two shifts, one known as the drillmen, and the other known as the shovelers, and plaintiff Hardy Cunningham and the deceased constituted the shift known as the drillmen, and Wampler and McDowell constituted the shift known as the shovelers. The defendant's superintendent had directed and committed to Wampler the duty to look for and make inspection to discover any unexploded charges of dynamite which remained in the face of the drift after the blasts had been fired, and had directed him to discharge any unexploded charges which he found, in order to protect the drillmen who would follow upon the next shift. Wampler had been performing that duty, and Hardy Cunningham and his deceased son were aware that Wampler had been so instructed by the defendant. It was not unusual for some of the dynamite charges to fail to be discharged and to be left in the face of the drift where the drillmen were required to work, and, if left undischarged therein, were liable to be...
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