Cunningham v. Doe Run Lead Co.

• Decision Date: 07 April 1930
• Docket Number: No. 29369.,29369.
• Citation: 26 S.W.2d 957
• Parties: CUNNINGHAM v. DOE RUN LEAD CO.
• Court: Missouri Supreme Court

26 S.W.2d 957

CUNNINGHAM v.DOE RUN LEAD CO.

No. 29369.

Supreme Court of Missouri, Division No. 2.

April 7, 1930.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Action by Hardy Cunningham against Doe Run Lead Company.Judgment for plaintiff, and defendant appeals.

Affirmed, on condition.

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 respondent.

BLAIR, P. J.

Action for personal injuries.Plaintiff had judgment for $30,000, and defendant appealed.This is the second appeal.Upon the first trial defendant had a verdict, and the trial court granted plaintiff a new trial.Upon defendant's appeal from that order, the judgment of the circuit court was affirmed.(Mo. Sup.)4 S. W.(2d) 802.

As the evidence was then held to be sufficient to authorize submission of the case to the jury, and since the evidence upon the second trial is substantially the same, a lengthy statement of the facts is not necessary.Plaintiff's evidence tended to show that he was employed by defendant as a driller in driving a drift at its mine at Rivermines in St. Francois county.He was severely injured April 16, 1923, by a belated explosion of blasting powder or dynamite which failed to explode when other shots were fired.When he later returned to work, he did not discover that the shot had not exploded and drilled into it.The resulting explosion not only injured appellant, but killed his son, who worked with him.Plaintiff and his wife had judgment for damages on account of the son's death.That judgment was affirmed by the St. Louis Court of Appeals.220 Mo. App. 38, 285 S. W. 757.

Plaintiff's evidence tended to show that he was not an independent contractor, as contended by defendant, but was an ordinary employee, paid a minimum daily wage of $4.20 and given a bonus, represented by the difference, if any, between the actual cost of the work and $5 per lineal foot.Defendant employed, paid, and discharged all of the labor, and furnished all tools, supplies, powder, fuse, power, etc., and charged the cost of the same against the particular work in which plaintiff was engaged.Defendant's evidence tended to show that plaintiff took the work as an independent contractor and agreed to do it for $5 per foot.Upon the former appeal and upon practically the same evidence, we held that it did not appear as a matter of law that plaintiff was an independent contractor, and we see no necessity for reviewing the matter again.4 S.W.(2d) loc. cit. 803, Par. I.

Plaintiff's evidence tended to prove that two shovelers, Wampler and McDowell, were employed by defendant to work on the night shift in the drift, where plaintiff and his son were drilling, in order to clean up the dirt and rock shot loose by the drillers.They were instructed by defendant to fire any unexploded shots they might discover in the course of their work.They both testified that they came on duty Friday night three or four hours after plaintiff and his son had loaded and lighted the fuses of the shots in twenty-two holes.They found two shots which had not exploded, and said that they forgot to fire them before they left the drift, but remembered that they had failed to do so while they were on their way out of the mine.It was pay day and they were in a hurry and therefore did not return to fire the shots.Wampler said that he intended to tell plaintiff about finding the shots, but forgot to do so.

Plaintiff and his son had counted the explosions before they left the mine and thought that all of the shots had been exploded.When they returned to the drift on Monday morning they looked around for any unexploded shots and found none.The work Wampler and McDowell had done in cleaning out the drift had doubtless covered up the evidence that the shots had not been exploded.

Plaintiff proceeded to set up his drill and drilled into one of these two shots and it exploded.The injury to himself and the death of his son resulted therefrom.Wampler examined the drift after plaintiff was injured, and said the shot which exploded and inflicted the injuries was one of the unexploded shots that he and McDowell had found and failed to explode, or to report that it had not been exploded.

There was sufficient evidence of negligence on defendant's part.The jury had the right to find that plaintiff was the servant of defendant and not an independent contractor; that it was the duty of Wampler and McDowell to fire any unexploded shots they found or, at least, to report the existence of such unexploded shots to plaintiff or the foreman; that their failure to do so constituted negligence which affected the safety of the place where plaintiff and his son were required to work.

Nor can it be said that plaintiff was guilty of contributory negligence as a matter of law.The jury was authorized to find that plaintiff and his son exercised ordinary care in examining the drift for unexploded shots and found none; that plaintiff knew it was the duty of the shovelers to fire unexploded shots, if they discovered any, or to report their existence; that plaintiff was not negligent in relying, to some extent, upon the shovelers doing their duty in this respect.The evidence on the second trial is substantially the same as that upon the first trial touching defendant's negligence and plaintiff's contributory negligence.On that evidence we held that a case was made for the jury upon the question of defendant's negligence, and that the issue of plaintiff's contributory negligence, and was one for the jury.4 S. W.(2d) Par. II, loc. cit. 804, 805 and 806.Our ruling there is controlling here.

Defendant's main reliance for reversal of the judgment is that error was committed in the giving and refusal of instructions, and that the verdict was excessive.The court gave twelve instructions, six of these were given at defendant's request.Instructions 1 to 6 were given at plaintiff's request, and defendant contends that the giving of each and every one of the six constituted reversible error.

InstructionNo. 1, in addition to requiring the jury to find the undisputed facts that defendant owned and operated the mine, and that plaintiff was injured therein on April 16, 1923, by a blast of dynamite powder, required the jury to find "that the plaintiff, at the time he claims to have been injured, was in the employ of the defendant, and was in its service, and was engaged in work required of plaintiff by the defendant as it(s) servant, and was acting within the scope of his employment as a servant of the defendant, and was engaged in operating the mine mentioned in the evidence, and that said mine was producing lead."

The instruction referred to instruction No. 2 for other facts which the jury was required to find before it could find the issues for plaintiff.Instructions 1 and 2 in fact constituted one instruction.They are so treated by defendant.InstructionNo. 2 is as follows:

"The Court instructs the jury that if you find and believe from the evidence the facts required to be found by you by instruction No. 1, given you by the Court, and then if you further find and believe from the evidence that prior to and at the time the plaintiff claims to have been injured that Ben Wampler was also then and there in the employ. of the defendant, and that he had been ordered and directed by the defendant, prior to the time plaintiff claims to have been injured, and that it was his duty, as a servant of the defendant, to, and that prior to the time plaintiff claims to have been injured, and at the times mentioned in the evidence, it was and had been the custom and practice of said Wampler, as a servant of the defendant, to look for, inspect and discover and discharge any shots or charges of dynamite powder which might be left undischarged in the face or side of the drift in the mine mentioned in the evidence, where the plaintiff, in the due course of his employment as a servant of the defendant, was required to be and work, which had not been fired and discharged when blasts therein had been discharged;

"And then if you further find and believe from the evidence that a shot or charge of dynamite powder was left undischarged and remained in the face or side of the drift of said mine at said place, after a blast had been fired and discharged, and that the same was unsafe and dangerous and liable to injure the plaintiff, if the same was not fired and discharged, and that the same rendered the place where the plaintiff, as a servant of the defendant in the due course of his employment, was required to be and work, unsafe and dangerous, and that plaintiff was liable to be injured thereby;

"And then if you further find and believe from the evidence that prior to the time the plaintiff claims to have been injured that said Ben Wampler, while in the service of defendant, and while engaged in doing the work required of him by the defendant, as its servant, and while engaged in the scope of his employment as such, and while engaged in the operation of said mine, discovered said undischarged shot or charge of dynamite powder in the face of said drift in said mine at said place, and became aware of, and knew that the same had not been fired and discharged in time, by the exercise of ordinary care, to have fired and discharged the same, and to have notified and warned plaintiff thereof, before the time plaintiff was injured, if you find he was injured;

"And then if you further find and believe from the evidence that said Ben Wampler, while in the service of the defendant, as aforesaid, and while engaged in the operation of said mine, as aforesaid, negligently failed to fire and discharge said charge of dynamite powder, and that in so doing, if you so find, the said Ben Wampler failed to exercise ordinary care, and the defendant and the said Ben Wampler negligently failed to notify or warn the...