Goucan v. Atlas Portland Cement Co.

• Citation: 298 S.W. 789,317 Mo. 919
• Parties: Mary Goucan, Appellant, v. Atlas Portland Cement Company and L. J. Boucher
• Decision Date: 30 July 1927
• Court: Missouri Supreme Court

298 S.W. 789

317 Mo. 919

Mary Goucan, Appellant, v. Atlas Portland Cement Company and L. J. Boucher

Supreme Court of Missouri

July 30, 1927

Motion for Rehearing Overruled September 16, 1927.

Motion to Transfer to Banc Overruled October 10, 1927.

Appeal from Ralls Circuit Court; Hon. Charles T. Hays Judge.

Reversed and remanded.

Rendlen & White and D. M. Stout for appellant.

(1) Where there is any evidence to sustain plaintiff's action it must be submitted to the jury. Every favorable inference of fact must be made in favor of plaintiff in ruling the demurrer. Twohey v. Fruin, 96 Mo. 109. Defendants were guilty of actionable negligence in permitting and causing the ponderous drill to be operated twelve feet away from the hole being loaded with dynamite, rendering extra hazardous an already hazardous work and making the place of work thereby unsafe for the work in which decedent was engaged. Roberts v. Jones, 156 Mo.App. 558. The facts and circumstances in evidence and favorable inferences therefrom made a submissible case, and if believed by the triers of fact entitled plaintiff to a verdict. "In applying the doctrine of proximate cause it is not necessary that the connection between the cause and the effect shall be proved beyond the possibility of doubt, or that such connection be cognizable by the senses. It is sufficient if the evidence of the connection produce that moral conviction upon which men are accustomed to act in the important concerns of life, and it is only necessary that the jury be reasonably satisfied that the alleged cause was in fact the proximate cause of the effect complained of." Buswell on Per. Inj., sec. 98, p. 156; Brady v. Railroad, 206 Mo. 537; Dean v. Railroad, 199 Mo. 411; Callahan v. Warne, 40 Mo. 136. (2) The evidence discloses that one of two things alone caused the explosion, either (1st) the violent vibration or jarring and resultant concussions of the stone walls of the hole around the charge of dynamite where decedent was at work, produced by the heavy rapid pounding of the 1200-pound steel stem of the drill twelve feet away, which made sixty-two strokes to the minute, or (2nd) the jarring loose of stone from the sides of the hole where decedent was at work by said operating drill, vibrating the walls of the drilled hole and causing loose stones to strike against each other, causing spark or concussions exploding the dynamite. Both these things were caused by the wrongful and negligent operation of the ponderously heavy drill twelve feet from the highly dangerous operation of placing a charge of dynamite into the drilled hole. Whether this negligence of defendants was the proximate cause of Moga's death was under the evidence for the jury to determine. Chambers v. Chester, 172 Mo. 461; Twohey v. Fruin, 96 Mo. 104; Dunn v Railroad, 21 Mo.App. 198; Roberts v. Jones, 156 Mo.App. 559. (3) Decedent complained about the drill operating so close to the hole where he was loading dynamite and deceased was told to go on, the drill would not stop "they were in a hurry." This was in effect an assurance of safety on which Moga had a right to rely. Moga "did not assume the risk to which he was exposed by the negligent order of his foreman." Bane v. Irvin, 172 Mo. 306; Haworth v. Mineral Belt Tel. Co., 105 Mo.App. 165. The danger was not so glaring that no prudent man would have continued at his work. Limbean and eighteen men under him did so continue. The question at most is one for a jury, not the court. Stephens v. Ry. Co., 96 Mo. 212.

Mahan, Mahan & Fuller for respondents.

(1) The court did not err in sustaining defendants' demurrer to the evidence. There was no evidence to go to the jury on defendants' negligence. All testimony offered by the plaintiff negatived the allegation of negligence contained in plaintiff's petition. Where the evidence shows that the explosion of 125 pounds of dynamite at a distance of twelve feet from two holes loaded with 125 pounds of dynamite each, failed to explode or disturb the dynamite in these holes, either by jarring rocks down onto the dynamite or by the concussion itself, the court is justified in holding that a Star well drill working a like distance of twelve feet could not produce an explosion, especially when the hole was then half stopped up with a wooden pole reaching from the surface to the choked dynamite. Where the testimony of a witness upon a material fact is contrary to the physical facts, or where such testimony necessarily relied upon is inherently impossible, or the inferences deducible therefrom are so opposed to all reasonable probability as to be manifestly false, the court will disregard it. Callanan v. United Rys., 263 S.W. 446; Roseman v. United Rys., 251 S.W. 104; Spohn v. Railroad, 87 Mo. 74; Spiro v. Transit Co., 102 Mo.App. 250. (2) It was for the plaintiff to account for the explosion and the causes of it, and there being present at least two independent causes, and no proof as to which of the two was responsible for the accident, there can be no recovery. Fuchs v. St. Louis, 167 Mo. 620; Breen v. Cooperage Co., 50 Mo.App. 202; Searles v. Railroad, 101 N.Y. 661; Dobbins v. Brown, 119 N.Y. 188. Where all the facts connected with the accident fail to point to the negligence of the defendant complained of as the proximate cause of the accident, but show a state of affairs where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of surrounding facts and circumstances of the accident, and the defendant is not called upon to explain the cause of the accident, and to purge himself of the imputed or inferential negligence. Hartman v. Railroad, 261 Mo. 279; Coin v. Lounge Co., 222 Mo. 488; Fritz v. Railroad, 243 Mo. 62; McGrath v. Transit Co., 197 Mo. 104. The jury must not be left to guess or conjecture, and a verdict founded upon mere speculation or conjecture will not be allowed to stand. Chandler v. Railroad, 251 Mo. 592; Wagner v. Railroad, 178 Mo. 125; Trigg v. Lumber Co., 187 Mo. 234. Whenever from all the facts and circumstances in evidence a jury may without doing violence to the dictates of reason and common sense infer a given fact on account of its known relation to the fact proved, the court should not interpose its own different conclusion. But while this is correct, the due protection of property rights demand that the court shall draw the line with a firm hand between tangible evidence and reasonable, legitimate deductions, and mere conjecture or speculation. Culett v. Light & Power Co., 220 S.W. 867. (3) It is probable that the negligence of Moga himself in carelessly using the pole to dislodge the choke of the dynamite caused the explosion. (4) Moga assumed whatever risk of injury there might have been by reason of his contract of employment. He was an experienced blaster, the situation was open and obvious and he had a chance to observe it, and by reason of his experience he understood it. If there were any danger he assumed the risk of that danger.

Atwood, J. All concur, except Gantt, J., not sitting.

OPINION

ATWOOD

This is an action for $ 10,000 damages by Mary Goucan (formerly Mary Moga), widow of John Moga, deceased, against Atlas Portland Cement Company and L. J. Boucher, the superintendent in charge of its rock quarry, for the death of her husband occasioned by an explosion of dynamite while he was working for said company as a blaster in said quarry. At the close of plaintiff's evidence the trial court sustained defendants' demurrer thereto, and plaintiff suffered an involuntary nonsuit with leave to move to set the same aside. Plaintiff's motion thereafter made to set aside the nonsuit was denied and plaintiff has appealed from the court's ruling thereon.

Plaintiff's evidence was adduced on her amended petition, which charged that it was the duty of defendants to furnish her said husband with a reasonably safe place in which and with reasonably safe appliances with which to perform his duties, and to exercise ordinary care to keep said place and appliances reasonably safe for the performance of his duties, and to discover and remove anything from the quarry which would render his place of work not reasonably safe; that it was the duty of defendants to direct and control the manner in which the said Moga performed his work, that it was his duty to obey, and that he at all times relied and acted upon their superior knowledge, authority and assurances; that defendants failed to discharge their said duties to the said Moga; that while in the usual and ordinary manner under the orders, direction and supervision of defendants he was placing dynamite in a hole, known as hole number 2, drilled in a rock ledge of said quarry for that purpose, defendants carelessly, negligently and wrongfully directed and permitted the operation, in another drill hole in the same ledge and within twelve feet of the hole which the said Moga was then and there loading with dynamite, of a heavy mechanical contrivance known as a Star well drill which lifted and let fall with great force and violence about sixty-two times a minute a large steel stem weighing about 1200 pounds, jarring and cracking said rock ledge and causing stones to shake loose from the sides of the hole where the said Moga was at work and upon the dynamite therein; that the said Moga then and there protested against such operation of said drill, and protested against placing more dynamite in said hole while said drill was being so operated, but was directed and commanded by defendants' foreman having control and direction over him to put an additional half box of dynamite in said hole, and was told by said foreman that the work must...