Cunningham v. Doe Run Lead Co.
| Decision Date | 24 March 1928 |
| Docket Number | 26394 |
| Citation | 4 S.W.2d 802 |
| Parties | CUNNINGHAM v. DOE RUN LEAD CO |
| Court | Missouri Supreme Court |
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.
The plaintiff was employed by the defendant as driller in driving a tunnel in one of the defendant's mines. He was injured by the belated explosion of a blast in the mine in which he was working, and sued the defendant for the injuries resulting. The suit was filed in St. Francois county and change of venue awarded to Jefferson county where, November 11, 1924, a jury returned a verdict for the defendant. Plaintiff filed his motion for new trial, and November 14 1924, the court sustained the motion 'upon the ground that the verdict is against the weight of the evidence.' The defendant thereupon appealed from that order granting a new trial.
The tunnel in which the plaintiff was working was 400 feet below the surface, and 3,000 to 4,000 feet long. Plaintiff was one of a crew driving a drift 8 feet high by 10 feet wide through for the purpose of permitting a railroad and cars to run from one part of the mine to another. Four men, two drillers, and two shovelers were engaged in the work; the plaintiff and his son were the drillers, Wampler and McDowell were the shovelers. They worked in two shifts. The drillers in one shift worked during the day, set their shots and fired them between 3 and 5 o'clock in the afternoon. Then they would leave and not return that day. After the shots were exploded, the shovelers would go to work about 7 o'clock, clean up the mine, shovel into cars and haul away the rock broken off as the tunnel progressed.
In April, 1923, on one Friday, the plaintiff and his son drilled 22 holes five or six feet in depth into the face of the rock in the end of the drift. These holes were arranged in double rows; the inner ones were loaded and fired first, and then the outer holes loaded and fired. Plaintiff listened to the detonations and thought the entire 22 shots had been fired. He and his son then left the mine and did not return until the following Monday morning. The next (Saturday) morning the shovelers came into the drift and discovered that two of the charges had not been exploded. They finished their work and it was their intention to notify Cunningham of the unexploded shots, but they were in a hurry to get their pay, that being pay day, and forgot about it. Cunningham and his son returned to the work Monday morning, and in drilling into the drift exploded one of these missed shots, causing the injuries to plaintiff for which he sues.
The trial court exercised his discretion in sustaining the motion for new trial on the ground that the verdict was against the weight of the evidence. And if we understand appellant's position, it does not dispute that that discretion was properly exercised, if the trial court was correct in adopting the plaintiff's theory of the case. A reversal is asked on the ground that no case at all was made out for the plaintiff; that the trial court should have sustained a demurrer to the evidence at the close of the case.
The acts of negligence alleged in the petition are that the defendant negligently failed to fire, or otherwise to remove, the missed shots; negligently failed to notify the plaintiff of the missed shots; negligently covered up and obscured the surface of the rock; and that the defendant furnished the plaintiff improper powder, such that it did not explode promptly. After a general denial the defendant pleaded contributory negligence.
The plaintiff's son, Ostil Cunningham, a minor, was killed by the same explosion which injured the plaintiff. The plaintiff and his wife sued for damages on account of the death, recovered a judgment, and the defendant appealed to the St. Louis Court of Appeals, where the judgment was affirmed (285 S.W. 757). The principal questions presented here were considered and decided by the St. Louis Court of Appeals against the contention of the defendant. The decision in that case is cited by respondent in support of its position here. The defendant, however, claims that this case is different on account of the different relation which the plaintiff sustains to the defendant from that which his son sustained, and that the facts are somewhat different. We do not discover any material difference in the two cases so far as the liability of the defendant is concerned; nevertheless we will consider the points urged for reversal.
I.It is first claimed that the plaintiff was an independent contractor because he had a contract to drive a drift at the rate of $ 5 per foot; that the entire crew was working for the plaintiff and the shovelers were a part of his force.
In relation to that matter, as shown by the undisputed evidence offered by the plaintiff, the facts are these:
The plaintiff's son, a boy of 19, was subject to his orders, although he was paid by the company directly $ 6.20 for 12 hours a day. Wampler and McDowell, the shovelers, were employed by the company, and according to their own testimony were getting from $ 5.70 to $ 6.20 per day for their shoveling. They were hired by the defendant and paid directly by the defendant; plaintiff had no authority to hire them nor to discharge them. He had no control over their work. They were employed in the mine before the plaintiff was set to drill the tunnel. It seems from the evidence that the company furnished such men as shovelers as were acceptable to plaintiff, but it is not clear whether he had any right to object to them. Working at a different time they had entire management of their own job. One Frank Murphy was Superintendent and Foreman of the mine, and had general direction of the work which the plaintiff was doing.
Plaintiff himself received a minimum wage of $ 4.20 per day. The expense of driving the drift was footed up and all expenses and wages paid at the end of the month were added up and deducted from $ 5 per foot for the amount driven, and the balance was paid to the driller Cunningham as a bonus. His pay checks were marked 'bonus checks.' He suffered no loss if the distance drifted at $ 5 per foot amounted to less than the cost; there was no written contract between him and the company that he was to get $ 5 per foot; he incurred no loss in any event; the bonus awarded him for cutting at a cost of less than $ 5 per foot was to encourage him in expeditious work. There are none of the elements of a contract which would make the plaintiff an independent contractor and relieve the company from liability to him for failure to furnish him a safe place to work, or for any negligent act of the company in the conduct of the work.
II.It is next contended by the appellant that its demurrer should have been sustained because the plaintiff's injury was incurred on account of his own contributory negligence. It is claimed that, being a driller, it was his duty to inspect and see that missed shots were properly discharged before continuing his work; that the defendant was under no duty to inspect the result of the plaintiff's work, or to see that it was rendered safe on account of any condition in which he left it. It is argued that missed shots were incidental to the very work which plaintiff was employed to perform, and the employer had no duty to make inspections for them.
The plaintiff was 37 years of age at the time. He had been working in mines since he was 14 years of age, and had commenced in this particular drift in November, 1921, about a year and a half before he was injured. He was employed by Frank Murphy, superintendent. The powder was furnished him by the defendant company. His employment was independent of that of the shovelers Wampler and McDowell. They were employed in the same way and paid in the same way that he was, except his bonus. He heard Mr. Murphy, the mine superintendent, tell Wampler to fire all missed holes because the mine might be wet. The shovelers always cleared up after the shots were fired. When the plaintiff came back to work Monday morning, he said:
He then set up his machine and began to drill when the explosion occurred. The witness further testified that the powder was not good, and he told Mr. Murphy that the powder was not doing the work that it ought to do, and that plaintiff would like to have the same kind of dynamite that they had been using previously. Murphy said he would see about it, but nothing was done about it. Plaintiff said in his testimony:
'The first thing I had to do when I went down into the mine and out into this drift in the morning was to inspect the drift and see if there were any missed holes, and such as that.'
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The plaintiff then explained the drilling of the holes on the Friday before he was hurt. He said in regard to the shovelers:
'The shovelers were supposed to shoot all the missed holes and keep the face of the drift clean, ready for the drillers.
He...
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