Delo v. Old Dominion Mining Co.

• Decision Date: 04 December 1911
• Citation: 160 Mo. App. 38,141 S.W. 687
• Parties: DELO v. OLD DOMINION MINING CO.
• Court: Missouri Court of Appeals

141 S.W. 687

160 Mo. App. 38

DELO v. OLD DOMINION MINING CO.

Springfield Court of Appeals. Missouri.

December 4, 1911.

1. MASTER AND SERVANT (§ 217)—INJURIES TO SERVANT—ASSUMPTION OF RISK.

A servant never assumes the risk of the master's negligence, but only the risks incident to the employment, so that though a servant, injured by a defective instrument, knew of the defect before the accident and continued to use it, his right to recover for such injury must be determined under the rules applicable to contributory negligence.

2. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE— QUESTION FOR JURY.

Where a servant merely has knowledge of the fact that an instrument with which he is working is defective, his continuing to work therewith is not contributory negligence as a matter of law, unless the danger therefrom is so obvious that there can be no opinion other than that to continue to work would be negligence.

3. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE.

In an action for injuries to a servant from a defective drill, evidence held properly submitted to the jury on the question of his contributory negligence in continuing to use the drill after knowledge of one of the defects therein.

4. MASTER AND SERVANT (§ 291)—INJURIES TO SERVANT—INSTRUCTIONS—NEGLIGENCE.

Where, in an action for injuries to a servant, the petition charges expressly that the injury was caused by a defective clamp, and no other negligence of the master was alleged or proven, an instruction which does not limit the issue to the negligence of the master in furnishing a machine with a defective clamp, but permits the jurors to base their verdict on any theory of negligence which they could construct or evolve, is improper.

5. MASTER AND SERVANT (§ 291)—INJURY TO SERVANT—ACTION—INSTRUCTIONS.

An instruction in an action for injuries to a servant which does not attempt to tell the jury what acts of the defendant they might consider in determining the question of negligence, but submits the whole question of law and fact to the jury, is improper.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by B. E. Delo against the Old Dominion Mining Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fred. L. Williams, for appellant. Thompson & Thompson, for respondent.

GRAY, J.

Appeal from a judgment of $200 in favor of plaintiff in an action for personal injuries. The appellant was engaged in mining in Jasper county, and plaintiff was in its employ as a drill or machine man. The drill weighed about 310 pounds, and was a machine used for the purpose of drilling holes into which powder was placed and discharged for the purpose of breaking dirt so it could be hoisted to the surface, and the ore therein extracted and prepared for market. The power used in running the machine was compressed air, of about 100 pounds pressure, and the drill made about 118 strokes per minute, and each stroke gave a blow of about 325 pounds. The drilling machine was set in place and held while operated by a column or arm—the machine being fastened to the arm by means of a clamp. When one hole was finished and it was desired to drill another, the clamp by which the drill was held on the arm or column was loosened and the drill moved to the proper place, and then again fastened to the column or arm by the clamp. The clamp was held on the column or arm by a bolt and nut, and to release the clamp the nut was unscrewed.

Plaintiff had been in the employ of the defendant prior to the accident, but had not been working for a week, and when he returned to resume his duties, he discovered that the clamp on his machine was defective, and that it had a piece about three inches long broken out of it. He worked with the machine without complaint for two days, when the clamp broke, and on account thereof the machine dropped on him and injured him.

As to his knowledge of the defect and the dangers incident thereto, we quote his testimony as follows: "I am an experienced drill man. I know all about a drill. I knew the weight at the time. I knew the number of vibrations it made. I knew as much about it as the foreman or superintendent would know. I have taken drills apart. I knew the weight that comes on the various parts of the drill. I know how to repair them. I am a pretty good judge whether they are safe or unsafe. I came back to go to work there on or about the 22d of September, after I had a lay-off of a week. I observed a clamp was broken off the day I came back. There was a piece broken out, I could see it. I knew the danger that would come from it. I knew it was a dangerous proposition to work. My experience as a drill man had taught me the danger. The ordinary man of any experience could have seen it. I knew as much about that as the superintendent and ground boss. I never talked to the superintendent. So far as I knew they knew nothing about it; that is, up to that time, I seen this clamp was broken, and I thought by being careful I could run it a few days. I didn't think it was so awful dangerous but what I could run it a few days more."

The evidence showed that after the accident, the clamp was examined, and it was ascertained that in addition to the break there was an old crack in it that plaintiff had no knowledge of prior to his injury. The defendant offered no testimony, and the first question is: Did plaintiff make a prima facie case which entitled him to have his cause submitted to the jury? Appellant says: "The evidence shows and plaintiff admitted that he knew of the defect which caused the injury, and also knew all of the danger incident to working with such defective clamp for two days prior to the injury. When not only the defect but the dangers incident to the use of the defective machinery are known to an experienced man, and he continues to work therewith and is injured, he cannot recover," and cites a long list of decisions of the Supreme Court of this state sustaining his position.

It will not be necessary to review all these cases, but it may be said they sustain the doctrine announced in Price v. Railroad, 77 Mo. 508, as follows: "A servant who takes employment...