Hoffman v. Peerless White Lime Co.

• Citation: 296 S.W. 764,317 Mo. 86
• Parties: Charles J. Hoffman v. Peerless White Lime Company, Appellant
• Decision Date: 24 May 1927
• Court: Missouri Supreme Court

296 S.W. 764

317 Mo. 86

Charles J. Hoffman v. Peerless White Lime Company, Appellant

Supreme Court of Missouri

May 24, 1927

Motion for Rehearing Denied June 25, 1927.

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

Affirmed.

Edward Robb for appellant.

(1) The court erred in refusing to give an instruction in the nature of a demurrer to the evidence, offered by defendant, both at the close of the evidence on the part of plaintiff and at the close of all the evidence, because: (a) The injury which plaintiff suffered was the result of an accident, and the plaintiff in accepting the employment in which he was engaged assumed all the risks incident to such employment. Patrum v. Railroad, 259 Mo. 125; Young v. Mo. Pac. Ry. 93 Mo.App. 275; Powers v. Loose-Wiles Co., 192 S.W 1045; Gwin v. Hydro Power Co., 195 S.W. 504; Thomas v. Railroad, 109 Mo. 199; Price v Railroad, 77 Mo. 508; Lucy v. Oil Co., 129 Mo. 32; Bradley v. Railway Co., 138 Mo. 303; Fugler v. Bothe, 117 Mo. 475; Nugent v. Milling Co., 131 Mo. 241; Alcorn v. Ry. Co., 108 Mo. 97. (b) The evidence failed to show that the injury suffered by plaintiff was due to any negligence on part of defendant. Smith v. Railroad, 37 Mo. 287; Sherwood v. Const. Co., 183 S.W. 687; Wojtylak v. Coal Co., 188 Mo. 278; Rowden v. Daniell, 151 Mo.App. 25; Eudy v. Federal Lead Co., 220 S.W. 504; Breen v. Cooperage Co., 50 Mo.App. 203; Bennett v. Equipment Co., 214 S.W. 244; Nugent v. Milling Co., 131 Mo. 252. (c) The injury suffered by plaintiff was due to his own negligence. Patrum v. Railroad, 259 Mo. 121; Glassock v. Dry Goods Co., 106 Mo.App. 657. (2) The court erred in giving Instruction A. (a) Because it submits facts not alleged and not in issue and at variance with the petition. (b) Because it eliminates from the facts required to be found, the charge in the petition that the rock which fell became loose as a result of blasting. (c) Because it allows the jury to find for plaintiff, if he was hit by any of the smaller rock when all the testimony showed it was the large rock which injured him. (d) Because, said instruction assumed as facts contested issues, namely, that defendant had knowledge that there were loose rock in the bluff. Ganey v. Kansas City, 259 Mo. 654; LaFever v. Pryor, 190 S.W. 644; Reel v. Consolidated Inv. Co., 236 S.W. 43; Lukaminai v. American Steel Co., 162 Mo.App. 631; Linn v. Bridge Co., 78 Mo.App. 111. (3) The court erred in giving Instruction C. Said instruction submits that if the jury find that the plaintiff "might have reasonably supposed that he could safely work about said bluff, by the use of care and caution, and that he did use such care" then he was not guilty of contributory negligence.

Jerry B. Burks for respondent.

(1) The servant never assumes the risk of dangers due to negligence of his master. The evidence shows that the bluff where defendant placed plaintiff to work, and where he was injured, was dangerous on account of loose rock falling promiscuously, therefrom, and defendant had known this fact for some time, yet took no steps to trim the bluff or even warn plaintiff of its exceptionally dangerous condition. This was negligence, pure and simple on part of defendant. Williams v. Pryor, 272 Mo. 613; Knight v. American Mfg. Co., 264 S.W. 91; Charlton v. Railway, 200 Mo. 433; Fish v. Railway, 263 Mo. 124; George v. Railway, 225 Mo. 407. (2) Neither was plaintiff guilty of any contributory negligence that would defeat recovery. He was ordered to his place of work. He did not know that rocks were and had been loose and falling, promiscuously. He did not know that this bluff where he was placed had been condemned and that the men had been previously taken away for that reason. He had the right, in the absence of knowledge to the contrary, to assume that defendant had discharged its duty to keep the place as reasonably safe for work as the character of the work would permit. George v. Railway, 225 Mo. 364; Littig v. Heating Co., 292 Mo. 242; Bradley v. Coal Co., 167 Mo.App. 182. Moreover no duty of inspection was imposed by defendant on plaintiff, and he cannot be charged with negligence for failing to inspect. Littig v. Heating Co., 292 Mo. 242. (3) In determining whether a demurrer offered at the close of the evidence should have been sustained, the court will give the evidence the most favorable consideration of which it is capable in favor of plaintiff, all testimony supporting plaintiff's case and every reasonable inference therefrom being taken as true. Albrecht v. Belting Co., 252 S.W. 402; Maginis v. Railway, 268 Mo. 675; Buesching v. Gas Light Co., 73 Mo. 230; Troll v. Drayage Co., 254 Mo. 338; Scherer v. Bryant, 273 Mo. 602; Jordan v. Connecting Ry., 271 S.W. 998. (4) Instruction C given for plaintiff was correct, and has been approved by this court time and again. Omelia v. Railway, 115 Mo. 218; Soeder v. Railway, 100 Mo. 681; Huhn v. Mo. Pac. Ry., 92 Mo. 447; Adams v. Harvesting Co., 95 Mo.App. 119; Harff v. Green, 168 Mo. 314; George v. Railway, 225 Mo. at 412. (5) The criticism of Instruction A, to the effect that it is broader than the petition and evidence, is hypercritical and without merit. Drilling is "work;" blasting is "work." The second objection is equally captious. If defendant negligently failed to remove the rocks it certainly permitted them to remain. (6) The mere fact that there was evidence by plaintiff's witnesses that the large rock which fell appeared loose and dangerous and anyone ought to be able to see it, and therefore in conflict with plaintiff's testimony that he did not discover the danger, is not conclusive against his right to recover, there being evidence of other witnesses that they did not know that this particular rock was loose. Ullom v. Griffith, 263 S.W. 879; Gilman v. Fleming, 265 S.W. 106; McGee v. Wabash Ry., 214 Mo. 530. (7) Question of negligence is ordinarily a jury question. This is especially true where an inference of negligence arises, or reasonable minds may differ. Troll v. Drayage Co., 254 Mo. 338; Jewell v. Bolt & Nut Co., 231 Mo. 199. (8) The verdict was not excessive. McCracken v. Swift & Co., 265 S.W. 93.

Seddon, C. Lindsay, C., concurs; Ellison, C., not sitting.

OPINION

SEDDON

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 tram car, 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 tortfeasors, 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, seventy-five 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 co-employees 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 five o'clock on the afternoon of January 5, 1922, by several rocks...