Cunningham v. The Doe Run Lead Company, a Corp.

• Decision Date: 15 June 1926
• Parties: HARDY CUNNINGHAM AND MAMIE CUNNINGHAM, HIS WIFE, RESPONDENTS, v. THE DOE RUN LEAD COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

285 S.W. 757

220 Mo.App. 38

HARDY CUNNINGHAM AND MAMIE CUNNINGHAM, HIS WIFE, RESPONDENTS, v. THE DOE RUN LEAD COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 15, 1926

Appeal from the Circuit Court of Jefferson County.--Hon. E. M Dearing, Judge.

AFFIRMED.

Judgment affirmed.

Clyde Williams, C. J. Stanton, and P. S. Terry for appellant.

(1) The demurrer offered by the defendant at the close of plaintiff's case and again at the close of the whole case should have been sustained for the reason: (a) That under the evidence defendant was not shown to be guilty of any act of negligence. Hulse v. Telephone Co., 164 Mo.App. 126; Kellerman v. Telephone Co., 189 Mo.App. 511-512; Knorpp v. Wagner, 195 Mo. 637; Barnett v. Star Paper Mill, 149 Mo.App. 489; Livengood v. Lead & Zinc Co., 179 Mo. 229; Brands v. St. Louis Car Co., 213 Mo. 797-798; Chrismer v. Telephone Co., 194 Mo. 189, 208; Smith v. Light & Power Co., 148 Mo.App. 585; Miller v. Railroad, 175 Mo.App. 349, 352; Lee v. Gas Co., 91 Mo.App. 612; Glasscock v. Dry Goods Co., 106 Mo.App. 657. (b) The deceased and plaintiff Hardy Cunningham were lead miners and drillmen of experience. They knew the danger as well as the master. These drillmen knew the conditions better than the master. The master is not compelled to be actively or constructively present so that men of experience will not hurt themselves. He may trust experienced men because when he hires experienced men he is presumed to hire not only the bodily services of the man (his hands, his eyes, muscles and legs), but the skill and knowledge pertaining to the servant's art or trade and possessed by the latter. The duty of inspecting the mine was not that of the master, but it belonged to the servant. For this reason plaintiff and deceased were guilty of contributory negligence. Knorpp v. Wagner, 195 Mo. 637; Livengood v. Lead & Zinc Co., 179 Mo. 229; Forbes v. Dunnavant, 198 Mo 209; Barnett v. Star Paper Mill, 145 Mo.App. 498; Hulse v. Telephone Co., 164 Mo.App. 126; Smith v. Light & Power Co., 148 Mo.App. 585; Miller v Railroad, 175 Mo.App. 349, 352; Modlagl v. Iron & Foundry Co., 248 Mo. 599; Humphrey v. Lusk, 196 Mo.App. 442; 4 Thompson on Negligence, secs 4284, 4703. (c) That all of the testimony shows that Ostil L. Cunningham was doing construction work; that the place around where he was working was, by reason of that fact, changing and the defendant is exempted from the rule that it must use reasonable care to furnish its employees with a reasonably safe place to work. 4 Thompson on Negligence, sec. 4705; Pippin v. Construction Co., 187 Mo.App. 360; Gibson v. Bridge Co., 112 Mo.App. 594; Bradley v. Tea & Coffee Co., 213 Mo. 326; Mehan v. Railroad, 114 Mo.App. 396; Finyalson v. Utica Mining & Milling Co., 67 F. 507; Gulf C. & S. F. Ry. v. Jackson, 65 F. 48. (d) Hardy Cunningham was an independent contractor. Morgan v. Bowman, 22 Mo. 538; Kiser v. Suppe, 133 Mo.App. 19. (2) The evidence shows conclusively that plaintiff, Hardy Cunningham, and the deceased, Ostil L. Cunningham, assumed the risk of the injury complained of. Livengood v. Lead & Zinc Co., 179 Mo. 229; Forbes v. Dunnavant, 198 Mo. 209; Knorpp v. Wagner, 195 Mo. 637. (3) It has been said that the damage from missed shots, being incident to the work of drilling and blasting in mines, it is not the duty of the master to make inspection for missed shots after the firing of each blast, but that this is a duty resting upon the miners themselves. 4 Thompson on Negligence (2 Ed.), sec. 3923; Brown v. King, 100 F. 561. (4) The duty of inspecting after the discharge of shots to ascertain whether or not there is an unexploded charge is a delegable duty, as is any duty incidental to a servant's employment and the negligence of the one to whom the duty has been delegated to make an examination is not negligence of the master, especially when the servant's knowledge is superior to the master's. Livengood v. Lead & Zinc Co., 179 Mo. 229; Knorpp v. Wagner, 195 Mo. 637; Trainer v. Mining Co., 243 Mo. 359; Forbes v. Dunnavant, 198 Mo. 193; Modlagl v. Iron & Foundry Co., 248 Mo. 587; Shelton v. Light Co., 167 S.W. 544; Anderson v. Construction Co., 178 S.W. 737; Perry v. Mining Co., 175 S.W. 140. (5) The custom is the test and although there may be a better or less dangerous method of doing work no jury can be permitted to say that the usual and ordinary way commonly adopted by those in the same business is a negligent way for which liability shall be imposed. Corn v. Lounge Co., 222 Mo. 506; Chresmer v. Telephone Co., 194 Mo. 189; Wrinkler v. Basket Co., 137 Mo. 394; Curtis v. McNain, 173 Mo. 270; Minnier v. Railroad, 167 Mo. 113; Harvey v. Smelting Co., 205 S.W. 93. (6) To use technical, legal terms in an instruction without defining them is error. Reybourne v. Phillips, 140 S.W. 977; Dalton v. Redemeyer, 154 Mo.App. 190, 197; Magrane v. Railroad, 183 Mo. 119, 132; Turnbow v. Dunham, 272 Mo. 65; Lumber Co. v. Pollinger, 165 Mo.App. 442; Gardner v. Railroad, 167 Mo.App. 605; Dunnigan v. Briggs, 170 Mo.App. 691; Beggs v. Shelton, 173 Mo.App. 127; Wiser v. Chesley, 53 Mo. 547; Dry Goods Co. v. Schooley, 66 Mo.App. 406; Digby v. Insurance Co., 3 Mo.App. 603; State v. Johnson, 111 Mo. 578; Horine v. Berry County, 69 Mo.App. 481; I. C. Ry. C. v. Nelson, 203 F. 956. (7) The verdict of the jury is excessive. The measure of parents' damages for the loss of a minor child is the value of his services during his minority, and burial and other expenses incurred by his death and sickness, less the expense of his support and maintenance during that time. Degan v. Jewell, 239 S.W. 66; Meeker v. Union Electric L. & P. Co., 216 S.W. 933.

Joseph J. Cooney, R. E. Kleinschmidt and Charles E. Morrow for respondents.

(1) The demurrer to the evidence was properly overruled. (a) Mr Wampler was a servant of the defendant to whom it had entrusted the duty of inspection for unexploded charges and who the defendant had directed to discharge them to protect the deceased, a drill man, from danger, and in this matter he was a vice-principal under the statutes applicable to mines, and the defendant is liable for his negligence. R. S. 1919, sec. 4234. Mr. Wampler was also a vice-principal under the provisions of the statute applicable to mines defining fellow servants, because he and the deceased were not working together at the time and place and to a common purpose of the same grade. R. S. 1919, sec. 4235. At common law Mr. Wampler and deceased were not fellow servants. 1. Because they were working on different shifts at different times and were not so associated in their work that they could observe each other's conduct and report any delinquencies to a common correcting head. Koerner v. St. Louis Car Co., 209 Mo. 141. 2. Because defendant had delegated to him the performance of a duty to deceased which defendant at least had impliedly agreed to perform in person, and Mr. Wampler was the agent selected by defendant to perform it. Koerner v. St. Louis Car Co., 209 Mo. 141; Shannon v. Mining Co., 24 Wash. 119. 3. The duty to remedy and to warn the servant of a danger known to the master is a positive nondelegable duty of the master. Deweese v. Mining Co., 54 Mo.App. 476; Affirmed, Deweese v. Mining Co., 128 Mo. 423; Rodney v. Railroad, 127 Mo. 676; Hysell v. Swift & Company, 78 Mo.App. 39; Dowling v. Gerard B. Allen & Co., 74 Mo. 13. Even an inferior servant to whom the master has delegated a positive duty which he owes another servant is a vice-principal as to that particular duty and his negligence in respect to the performance or nonperformance thereof renders the master liable. Mitchell v. Ice & Fuel Co., 206 Mo.App. 271; White v. Montgomery Ward & Co., 191 Mo.App. 268; Zellars v. Water & Light Co., 92 Mo.App. 107. The knowledge of Wampler as a vice-principal is the knowledge of defendant. Sullivan v. Railroad, 107 Mo. 66; Banks v. Railroad, 40 Mo.App. 458; Dedrick v. Railroad, 21 Mo.App. 433; Mitchell v. Ice & Fuel Co., 206 Mo.App. 271; 26 Cyc. 1147. Under the statute applicable to mines the defendant is liable for the negligence of Mr. Wampler in failing to perform his duty as a servant of the defendant even if he were a fellow servant of deceased. R. S. 1919, sec. 4233; Martin v. Coal Co., 174 Mo.App. 441. (b) Neither the deceased or his father were guilty of contributory negligence as a matter of law. Mount v. Mining Co., 294 Mo. 603; Seals v. Whitney, 130 Mo.App. 412; Deweese v. Mining Co., 54 Mo.App. 476; Willis v. Railroad, 44 Mo.App. 51. The deceased and his father had the right to rely upon the presumption that Wampler had performed his duty. Mount v. Mining Co., 294 Mo. 603; Merrett v. Railroad, 81 Minn. 469; 26 Cyc. 1234, 1235. Nor did the evidence conclusively show that the danger was so glaring and obvious that a conclusive inference of contributory negligence arose. Mount v. Mining Co., 294 Mo. 603; Hall v. Coal & Coke Co., 260 Mo. 351. (c) This case falls within several exceptions to the general rule that where the conditions are transitory and changing, the safe place to work doctrine does not apply. Aldridge v. Furnace Co., 78 Mo. 559; Hammon v. Coal & Coke Co., 156 Mo. 232; Greenstein v. Iron & Foundry Co., 178 S.W. 1179; Savage v. Building & Contracting Co., 214 S.W. 290; Frazier v. Refining Co., 150 Mo.App. 419; Kessell v. Mining Co., 44 Mont. 445; Crist v. Gas Co., 72 Kan. 135; Coffeyville, etc., Brick Co. v. Shanks, 69 Kan. 306; White's Personal Injuries in Mines, pp. 47, 48. (d) The deceased and his father were both servants of defendant. The father of the deceased was not an independent contractor as a matter of law. Diehl v. Fire Brick Co., 253 S.W. 984; Lawhon v. St. Joseph, etc. , Laboratories, 252 S.W. 44; Gayle v. Missouri Car Co., 177 Mo. 427; O'Neill v....