Hoffman v. Peerless White Lime Co.

• Decision Date: 24 May 1927
• Citation: 296 S.W. 764
• Parties: HOFFMAN v. PEERLESS WHITE LIME CO.
• Court: Missouri Supreme Court

296 S.W. 764

HOFFMAN v. PEERLESS WHITE LIME CO.

Supreme Court of Missouri, Division No. 1

May 24, 1927.

Motion for Rehearing Denied June 25, 1927.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

Action for personal injuries by Charles J. Hoffman against Peerless White Lime Company and another. From a judgment for plaintiff against the named defendant, it appeals. Affirmed.

Edward Robb, of Perryville, for appellant.

Jerry B. Burks, of Farmington, for respondent.

SEDDON, C.

Action to recover damages for personal injuries sustained by plaintiff and alleged to have been caused by defendant's negligence. Plaintiff was employed as a common laborer in defendant's quarry near the city of Ste. Genevieve, and, at the time of his injury, was engaged in shoveling spawls, or small rocks, from the floor at the bottom of the quarry into a small tramcar, which was used in transporting the broken rock to defendant's lime kilns nearby. The suit was originally instituted against two corporate defendants as joint tort-feasors, but, prior to the trial, dismissal was made as to one of the defendants, leaving the appellant herein, Peerless White Lime Company, as the sole defendant.

The petition charges defendant with negligence in the following respects:

"That on and prior to the 5th day of January, 1922, defendants, in the process of quarrying at the place aforesaid, had opened up a large quarry, and, to obtain the rock and stone therefrom, from time to time did drill into a perpendicular bluff or wall of rock, 75 feet or more in height, at said quarry, and did then blast or shoot down said rock by means of powerful explosives.

"Plaintiff further states that on the said 5th day of January, 1922, he was in the employ of defendants, and as such employee was engaged in the work of breaking and shoveling rock so shot down at the quarry aforesaid of defendants, as was his duty in the premises, and as he was 'ordered and directed so to do by defendants and their agents in charge of said quarry; that while plaintiff was so working on said date at said quarry, and near the foot of said bluff, and while engaged in the performance of his duty as a shoveler and employee of defendants, and while acting in the course and scope of his employment, a large rock and many smaller rocks which had become and remained loose and dangerous in and on said bluff, as a result of the blasting aforesaid, fell from said bluff of rock down and upon plaintiff; that, as a direct result of said rocks falling upon and striking plaintiff," he sustained certain specified injuries.

"Plaintiff states that his injuries aforesaid were occasioned by, and are the direct result of, the negligence of the defendants, their agents and servants, (1) in that they failed to use ordinary care to provide for plaintiff a reasonably safe place to work; (2) negligently failed to inspect, or cause to be inspected, said bluff or wall of rock for the purpose of ascertaining and discovering the loose rocks aforesaid in said bluff; and (3) negligently failed to remove, or cause to be removed, the loose rocks in said bluff which fell from said bluff upon plaintiff or warn plaintiff of said loose rock.

"Plaintiff avers and charges the fact to be that defendants well knew that the bluff or wall of rock at and near where plaintiff worked had and contained loose and dangerous rock, and knew that said rocks were liable at any time to fall and injure plaintiff and his coemployees while in the discharge of their duties, or by the exercise of ordinary care could have known all said facts in time to have warned plaintiff, and in time to have removed the loose rock from said bluff, and in time to have made said bluff and quarry reasonably safe for use, and thereby prevented injury to plaintiff."

The answer consists of a general denial, with pleas of assumption of risk and contributory negligence. The reply is a general denial.

Plaintiff was injured between 4:30 and 5 o'clock on the afternoon of January 5, 1922, by several rocks which fell upon him from the perpendicular face of the quarry bluff at the foot of which he was working. Defendant's quarry extends in an easterly and westerly direction in the shape of a horseshoe or crescent, and was variously estimated by the witnesses as from 350 to 600 feet, or more, in length. The face of the quarry was estimated by the witnesses as extending perpendicularly some 60 to 75 feet in height above the surface of the ground in front and at the base of the quarry, with the exception that, at the bottom of the quarry face, there was what the witnesses describe as the "toe" of the bluff, consisting of a slope extending outwardly and downward from a point a few feet upward on the perpendicular face of the bluff to a point on the floor of the quarry about 12 feet outwardly from the perpendicular face. The quarry had been in operation for some 15 years, and the rock used in defendant's business was shot down, or broken off the bluff, by blasting. At or near the west end of the quarry was a tunnel, which had been made into the face of the bluff. In shooting down the rock from the main bluff, or face of the quarry, well drills were used in making holes in the bluff, the holes were then loaded with powder or dynamite, and several holes were fired simultaneously, thereby causing large rocks to be thrown downward to the foot of the bluff, where they were broken up into smaller rock and loaded into small wheeled boxes, or cars, to be conveyed over a track to the lime kilns. In removing the rock from the tunnel, jack hammers were used in drilling the holes, and smaller blasts were used than those used in the removal of the rock from the main bluff.

Plaintiff began his work for defendant on January 4, 1922, and had worked during the whole of that day and most of the following day, until about 4:30 in the afternoon, when he was injured. He had previously worked for defendant in the same quarry somewhat intermittently, and at different times, for about 3 years. The evidence is uncontradicted that he was ordered, or directed, by defendant's foreman to work at the particular place where he was injured, which was about the middle of the perpendicular face of the bluff, and some 12 or 15 feet distant therefrom, at which place he was shoveling spawls, or small, broken rocks, into the tramcar, pursuant to the directions of the foreman. While so working, a number of small rocks and a very large rock fell, without warning, from the face of the perpendicular bluff immediately above the place where plaintiff was working. One of the small rocks struck plaintiff upon the face, throwing him backward, and, as he was falling, the large rock struck the "toe" of the bluff, and rolled or slid over the "toe" upon the body and lower limbs of plaintiff, pinning him beneath the rock. The large rock was described as being about 4 feet in length and about 2½ feet thick, and as weighing approximately a ton. The place in the face of the bluff from which the large rock fell was estimated by the witnesses at from 15 to 30 feet from the bottom, and about 30 to 45 feet from the top, of the perpendicular bluff. It required the combined effort of several fellow workmen to lift the heavy rock off plaintiff. Plaintiff was severely injured. He suffered lacerations of the head and face ; his left arm was broken ; both pelvic bones sustained comminuted, or multiple, fractures ; there was a separation of the pubic bones ; and his back, hips, and thighs were lacerated and contused.

The evidence tends to show that defendant, or its representatives, had made no inspection of the bluff for several days, at least, prior to plaintiff's injury. Plaintiff testified:

"Q. State whether or not, during the 2 days you were there, the defendant had any one examining that bluff or testing it to see if there was any loose rock up there? A. They never had anybody that I knowed of. Q. They had no inspector that you know of? A. No, sir."

Plaintiff's witness Flieg testified:

"Q. Now, at the time you went over there to work at the place where he (plaintiff) got hurt, state whether or not the defendant had any one going around and examining that bluff to see whether there was any loose rock there? A. No, sir. Q. Had you seen them do that while you worked there? A. Well, no, not as long as I had worked there. I only started on the 2d— I had only worked there two days. Q. Up to that time, you had not seen them do that? A. No, sir. * * * Q. Now, Mr. Burks asked you whether there was anybody around there inspecting that and looking at it—you don't know anything about that, do you? A. I never did see anybody inspecting the bluff, or I never seen anybody before this accident scaling the bluff."

Plaintiff's witness Richard Rayoun testified:

"Q. When did you quit work there, if you did quit? A. Second of January, 1922. * * *

Q. Up to the time you quit there, state to the jury whether or not the defendant had any one taking down loose rocks in that bluff and inspecting it to see if there were any loose rocks in it? A. They did not. They had no inspector or taken any rocks down at all."

Defendant's witness Dallas testified on cross-examination:

"Q. Did the company have any one go up there and examine those rocks? A. No, sir. Q. Or take them down, or notify you people, anything of the kind? A. No, sir; not at that time."

Defendant offered no evidence tending to show that it had inspected the bluff, or scaled the face of the bluff of loose rocks, at any time prior to plaintiff's injury.

Several witnesses testified as to the condition and appearance of the perpendicular face of the bluff at, and for some days prior to, the time of plaintiff's injury. Plaintiff's witness Roth testified:

"Q. State to the jury whether or not you had worked at this place where he (plaintiff) got hurt? A. I worked there one day. Q. When was that? A. That was the day before he went to work. I worked there the...