Jacob v. Peerless White Lime Co.

• Decision Date: 21 May 1931
• Docket Number: 28842
• Citation: 40 S.W.2d 556,327 Mo. 868
• Parties: Elizabeth Jacob v. Peerless White Lime Company, Appellant
• Court: Missouri Supreme Court

40 S.W.2d 556

327 Mo. 868

Elizabeth Jacob v. Peerless White Lime Company, Appellant

No. 28842

Supreme Court of Missouri

May 21, 1931

Motion for Rehearing Overruled June 24, 1931.

Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.

Affirmed.

Jones Hocker, Sullivan & Angert and W. A. McCaleb for appellant.

(1) Plaintiff's deceased husband was guilty of contributory negligence, as a matter of law. The danger of walking across the car tracks, with an open box of dynamite caps in his hand, immediately in the path of the sparking light carried by Geisler, was open and obvious to deceased and the danger of injury under such circumstances was so imminent and glaring as to bar recovery under the doctrine of contributory negligence. Watkins v. Bird-Sykes Bunker Co., 16 S.W.2d 43; Dixon v. Construction Co., 318 Mo. 59; Egan v. Gas & Electric Co., 233 S.W. 239; Ward v. Car & Fdy. Co., 293 S.W. 492; Williams v. Ice Co., 214 S.W. 385; Jablonowski v. Cap Co., 312 Mo. 189; Van Bibber v. Swift & Co., 286 Mo. 339; Watson v. Marble Co., 290 S.W. 649; Hall v. Coal & Mining Co., 249 S.W. 444; Knoles v. Tel. Co., 265 S.W. 1005; Jennings v. Ry. Co., 243 S.W. 207; Reynolds v. Ice & Storage Co., 184 S.W. 934; Kilmer v. Zinc Co., 227 S.W. 861; Kube v. Coal & Mining Co., 209 S.W. 614; Maize v. Coal Co., 203 S.W. 633; Robnett v. Brewing Co., 209 Mo.App 378; Cook v. Hines, 235 S.W. 156; Patton v. Tea Co., 15 S.W.2d 360. (2) The evidence must support the charge of negligence as alleged, and if it does not the jury cannot consider it. (a) There is no evidence that defendant permitted its employees to pass in close proximity to the powder magazine, usually or customarily. As far as the evidence shows, the miners always passed a sufficient distance to the west of the magazine to avoid danger. (b) The allegation of negligence in question was not drawn on the theory of respondeat superior, but upon the theory that defendant permitted a dangerous practice to be followed by its employees. The theory of the allegation was that defendant was guilty of personal, primary negligence as distinguished from its liability under the doctrine of respondeat superior. (3) No duty is imposed on the master to adopt rules where the dangers attending the work are obvious or of common knowledge and fully understood by the servant. 39 C. J. 472, sec. 586; Tatum v Crabtree, 94 So. 451; Rhodes v. Ry. Co., 161 N.W. 652; McCafferty v. Railroad Co., 76 A. 865; Stewart v. Iron Co., 125 N.Y.S. 1073; Norfolk & Western Ry. Co. v. Graham, 31 S.E. 604; Pern v. Wussow, 129 N.W. 622. (a) The failure of defendant to establish rules was not the proximate cause of the accident. Jennings v. Ry. Co., 243 S.W. 207; Reynolds v. Ice & Storage Co., 184 S.W. 934; Kilmer v. Zine Corp., 227 S.W. 861. (b) The evidence did not show any necessity for rules.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) The court property submitted the case to the jury. (a) The law presumes, in the absence of evidence to the contrary, that deceased was in the exercise of ordinary care. Buesching v. Gas Co., 73 Mo. 219; Burt v. Nichols, 264 Mo. 1; Hatchett v. Rys. Co. (Mo.), 175 S.W. 880; Stewart v. Gas Co. (Mo.), 241 S.W. 909. (b) In passing upon a demurrer to the evidence, it is the duty of the court to accept as true all evidence in favor of plaintiff, and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to countervail or overthrow inferences in plaintiff's favor. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Buesching v. Gas Light Co., 73 Mo. 219; Gratiot v. Railroad, 116 Mo. 450; Linderman v. Carmin, 255 Mo. 62; Scherer v. Bryant, 273 Mo. 596; Steffens v. Fisher, 161 Mo.App. 393. (c) The burden of proving negligence on the part of the deceased rested upon the defendant. Buesching v. Gas Co., supra; Raymen v. Galvin (Mo.), 229 S.W. 750; Chaar v. McLoon, 304 Mo. 238. (d) The evidence does not convict the deceased of contributory negligence, as a matter of law. Burt v. Nichols, 264 Mo. 1; Unrein v. Hide Co., 295 Mo. 353; Head v. Lumber Co. (Mo.), 281 S.W. 441; Cunningham v. Lead Co. (Mo.), 4 S.W.2d 802; Wilson v. Railroad, 317 Mo. 647; Allen v. Ry. Co. (Mo.), 294 S.W. 80; Hoffman v. Lime Co., 317 Mo. 86; Stahl v. Railroad (Mo.), 287 S.W. 628; Biondi v. Coal Co. (Mo.), 9 S.W.2d 596; Shubert v. Fleming (Mo. App.), 1 S.W.2d 852; Lampe v. Brew. Assn., 204 Mo.App. 386. (2) The court properly refused defendant's withdrawal instructions. From the evidence, the jury could find that the defendant negligently permitted other miners with lights on their caps to come in dangerous proximity to the place where the deceased was handling the dynamite caps. Authorities, Point I (b). (3) The evidence showed a negligent failure on defendant's part to promulgate rules for the proper regulation of its business. Soltesz v. Provision Co. (Mo.), 260 S.W. 990; Haggard v. Railroad Co., 302 Mo. 19; Wilborn v. Lead Co., 268 S.W. 657; Peppers v. Glass Co., 165 Mo.App. 569; 3 Labatt, Master & Servant (2 Ed.) sec. 1110; Vol. 4, sec. 1504. (4) There was ample evidence from which the jury could find defendant liable for the act of Geisler in moving, with a light on his cap, in close and dangerous proximity to the deceased. Sec. 4233, R. S. 1919. (5) Withdrawal instructions should be unambiguous, and not leave the matters to be withdrawn in doubt, or intermingled with other matters properly in the case. Komor v. Foundry Co. (Mo. App.), 300 S.W. 1028; Latham v. Hosch, 207 Mo.App. 381; American Auto. Ins. Co. v. Rys. Co., 200 Mo.App. 317; Kinlen v. Railroad, 216 Mo. 145; Schulz v. Smercina, 1 S.W.2d 113.

OPINION

Gantt, P. J.

This case came to me on reassignment. Action by Elizabeth Gisi to recover for the death of her husband, William Gisi, while in the service of defendant in its mine in Ste. Genevieve County. On suggestion of the marriage of plaintiff to one Jacob, the proceeding continued in the name of Elizabeth Jacob. The trial resulted in a verdict for $ 8,500, judgment accordingly, and defendant appealed.

It is alleged (1) that defendant negligently failed to use ordinary care to furnish Gisi a reasonably safe place to work, in that it required him to handle explosive caps at or near a place used by other employees carrying lighted lamps on the front of their caps, from which sparks emitted, thereby causing an explosion and the death of Gisi; (2) that defendant negligently permitted said employees with said lamps to move in dangerous proximity to a powder magazine at which it required Gisi to handle said caps, thereby causing an explosion and the death of Gisi; (3) that defendant negligently failed to promulgate rules for the safety of employees in that it failed to require said caps to be handled outside the mine, and failed to require employees carrying said lamps to refrain from dangerous proximity to others handling explosives, thereby avoiding an explosion and death of Gisi; (4) that defendant, acting through its employees, negligently moved with said lamp in dangerous proximity to Gisi, thereby causing an explosion and the death of Gisi. The answer was a general denial.

I. Defendant contends its demurrer should have been sustained for the reason the plaintiff, in her effort to make a case, shows conclusively that her husband was guilty of negligence which contributed to his death.

There is evidence tending to show the following: Defendant conducts a limestone mine in Ste. Genevieve County. A tunnel thirty-five feet wide and thirty-five feet high extends from the north six hundred feet southward into the mine. Natural light entering through the opening extends one hundred feet into the tunnel. The limestone is transported from the mine in motor-driven cars over two tracks, each twenty-three inches wide. The tracks are on the ground in the center of the tunnel. The drinking water for employees and the carbide for lamps were on the east side of the tunnel and fifty feet from the entrance of the tunnel. A cupboard (magazine) resting on a bench ten feet long and three feet high was also on the east side of the tunnel and one hundred feet from the entrance of the tunnel. It is four feet from the bench to the east rail of the east track. The large box of caps and dynamite were stored outside of the mine. Caps and fuses convenient for use were kept in the cupboard. The defendant had many employees carrying, on the front of their caps, lamps from which projected a three-inch flame. If the flame came in contact with limestone dust or other solid particles, sparks were emitted. This occurred in defendant's mine whenever employees carrying lamps walked into a current of air.

On September 6, 1924, William Gisi, plaintiff's husband, was in the service of defendant as helper to one of its miners. In the course of his employment it was his duty to fasten caps over the end of fuses. On the day in question, and while he was so engaged at the bench and cupboard, Geisler, another employee, carrying a lighted lamp on the front of his cap came from the south end of the tunnel for drinking water. The ground west of the tracks was muddy, causing Geisler to walk on the east side of the tunnel. As he "came up to" Gisi, his (Geisler's) lamp was emitting sparks. Gisi's lamp was not lighted. At that time a motor was approaching, and Gisi turned westward to cross the tracks with an open box in his hand containing one hundred dynamite caps. In turning to cross the tracks he brushed Geisler on the shoulder as he passed in front of him toward the west side of the tunnel. Almost...