Genta v. Ross

• Decision Date: 02 March 1931
• Citation: 37 S.W.2d 969,225 Mo.App. 673
• Parties: PETE GENTA, RESPONDENT, v. MICHAEL ROSS, ADMR., APPELLANT
• Court: Kansas Court of Appeals

37 S.W.2d 969

225 Mo.App. 673

PETE GENTA, RESPONDENT, v. MICHAEL ROSS, ADMR., APPELLANT

Court of Appeals of Missouri, Kansas City

March 2, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Ralph S Latshaw, Judge.

AFFIRMED.

Judgment affirmed.

Watson Gage, Ess, Groner & Barnett and Conger R. Smith for respondent.

Harris & Koontz for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action seeking to recover damages for personal injuries, originally instituted against W. A. Ross. Upon his death it was revived and Michael Ross, an administrator of his estate, was substituted as party defendant. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 3500. After unavailing motions for a new trial and arrest of judgment, defendant duly appealed.

Plaintiff's petition charges negligence, as follows: (1) Failure to furnish a reasonably safe place in which to work, in that a large rock was permitted to be and remain for a long time in a loose condition upon a large pile of rocks where it was liable to fall at any time to a lower level about which plaintiff had been directed to work; (2) negligently failing to give plaintiff any warning of the position of said large rock; (3) failure to make reasonable inspection of said rock pile when the same would have disclosed the unstable situation of said large rock; (4) in negligently directing plaintiff to work in a position of danger immediately below said rock when defendant knew, or by the exercise of ordinary care could have known that said rock was in an insecure and unstable position on said pile of rock, and when defendant knew, or by the exercise of ordinary care might have known that said rock was apt to fall to lower levels in said quarry upon plaintiff in the position where he was working under the direction of defendant.

Defendant's answer contains a general denial, and for affirmative defense pleads contributory negligence and assumption of risk.

The record disclosed defendant had been engaged in the operation of a rock quarry at Swope Park in Kansas City, Missouri. The quarry consisted of a solid rock wall approximately ten feet high, with a facing of some two hundred feet. To loosen the rock, holes were drilled on top of the ledge, some six feet back from the face. A blast would then be set off. The shots resulted in breaking off great parts of the ledge. Thus a considerable quantity of stones, of various sizes, was thrown out onto the floor of the quarry. These stones would extend back and upwardly from the floor to the ledge from which the blast was fired. Defendant's employees would later break these rocks into sizes suitable for paving or construction work.

On October 27, 1926, plaintiff was employed as a rock breaker. He was injured the next day by a large rock falling or sliding from a pile adjacent to the place where he was working. The size of this rock was estimated at from four to sir feet long, three to four feet wide, six inches thick and weighing between four hundred and five hundred pounds. It appears in evidence that on the day previous to his employment a shot had been fired throwing up the pile in question. Plaintiff testified no one had warned him of the danger in working about said pile. There was also evidence tending to prove that plaintiff had been directed to work at the particular location where he was injured; that, although defendant's superintendent, a Mr. Bard, was in and about the quarry and had more than a reasonable time for inspection, no attempt had been made by him to ascertain if any large rocks were insecure upon the piles, or in a dangerous position, near where plaintiff was then employed; that it was the duty of said superintendent, as well as of the foreman upon the job (a Mr. Hunley), to make such inspections, which neither of them made; that it was the practice for some of the other employees of defendant to use an air drill upon the piles in order to break the stones, too large for the men to work upon, into convenient size for handling by plaintiff and others; that such use of air drills loosened the stones upon the pile by the vibration and the dragging thereover of hose attached to said drills. Other portions of the record will be referred to in the course of this opinion.

Appellant first urges as a general assignment of error, that no negligence on the part of the defendant was shown, and further that plaintiff's own testimony established that he was guilty of contributory negligence as a matter of law. In his brief appellant states his contention as follows:

"Defendant's evidence tended to show that plaintiff was an experienced rock breaker, was familiar with the character of work which he was doing which involved the taking of large pieces of rock from the pile up against the ledge, breaking them into smaller rocks and depositing them in a pile away from the ledge, and then continuing in the same manner in breaking rocks which he himself removed from the pile and that in moving the rock which he broke up, he undermined the top of the pile causing the stone by which he was injured to slide down and injure him."

While there is evidence in the record tending to support defendant's contention, yet, under the testimony as disclosed by the entire record, this position is not sustained. In speaking of a similar situation in Hoffman v. Peerless White Lime Co., 296 S.W. 764, 773, the Supreme Court said:

". . . ordinary care required of the defendant master the making of a reasonable inspection of the quarry bluff in order to discover the existence of loose rocks, whether loosened by the blasting operations or by weathering or other causes, and the removal of such rocks in order that injury to his employees might be averted. Under such circumstances, it cannot be said that plaintiff assumed the risk of injury from the falling rocks. . . . Nor can we say that the evidence herein conclusively shows that plaintiff was guilty of contributory negligence as a matter of law. It is well settled in this state that, unless the danger occasioned by the master's negligence is so glaring and obvious to the servant as to threaten immediate injury, the servant cannot be held to be guilty of contributory negligence as a matter of law." [See also Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Littig v. Heating Co., 292 Mo. 226, 237 S.W. 779; Edmondson v. Hotel Statler Co., 306 Mo. 216, 267 S.W. 612.]

It is also well settled in this state that it is a continuing duty of a master at all times to use ordinary care to furnish his servant with a reasonably safe place in...