Jewell v. Excelsior Powder Mfg. Co.

• Decision Date: 04 April 1910
• Parties: JEWELL v. EXCELSIOR POWDER MFG. CO.
• Court: Missouri Court of Appeals

127 S.W. 598

143 Mo. App. 200

JEWELL v. EXCELSIOR POWDER MFG. CO.

Kansas City Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 2, 1910.

1. MASTER AND SERVANT (§ 119) — NEGLIGENCE OF MASTER — SAFE APPLIANCES.

Notwithstanding the rule that the master is not bound to furnish the safest and best tools and appliances, it was negligence for the owner of a powder factory to have in the motor room of the corning mill an open switch for turning on and off the electric current; the operator being required to come from work in the corning room twice an hour to turn the switch, his clothing and person being sure to be covered with powder dust, sparks, as a rule, being thrown out from the arc whenever the switch was turned, and the risk being one which would have been obviated by ordinary care in equipping the switch with any one of several safety devices.

2. MASTER AND SERVANT (§ 264) — INJURY TO SERVANT — NEGLIGENCE — PLEADING AND PROOF.

The gravamen of the charge in each specification of negligence in the petition for injury to an employé in a powder factory from a fire set to his clothes by a spark emitted when he threw a switch to turn on the electric power being the failure of the master to equip the switch with a device for the protection of the employé from flying sparks, plaintiff's burden of proof was satisfied by evidence that a spark from the switch set the fire, and that the spark would have been extinguished or arrested had the switch been equipped with any one of the appliances mentioned in the petition, and alleged to have been negligently omitted.

3. MASTER AND SERVANT (§ 278) — NEGLIGENCE OF MASTER — CIRCUMSTANTIAL EVIDENCE.

That fire was set to an employé by a spark emitted on the throwing of a switch to turn on electric power, and that the spark would have been extinguished or arrested had the switch been equipped with any one of the appliances alleged to have been negligently omitted, may be shown by circumstantial evidence.

4. MASTER AND SERVANT (§ 265) — INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — PRESUMPTION.

It cannot be assumed, in aid of the defense, that an employé in a powder factory, to whose clothing fire was set when in the motor room of the corning mill, where he had gone to turn on the electric power, ignited a match; there being no evidence that he had one, and no reason for using one there.

5. MASTER AND SERVANT (§ 264) — INJURY TO SERVANT — NEGLIGENCE — PLEADING AND PROOF.

The answer, in an action for setting fire to an employé in a powder factory while in the motor room of the corning mill, alleged to have been caused by negligence of the master in not equipping the switch with a device to prevent sparks flying when the switch was turned, having admitted unequivocally that the employé's clothing caught fire in the room, and in the alternative that either a spark came from the switch or that the employé set his clothing afire by lighting a match, it was enough, the setting of the fire by a match appearing too improbable to receive serious attention, to introduce evidence supporting the theory that the spark came from the switch, though it equally supported the inference that it might have come from the fuses or motor.

6. MASTER AND SERVANT (§ 226) — ASSUMPTION OF RISK.

The servant does not assume risks created by negligence of the master.

7. MASTER AND SERVANT (§ 289) — INJURY TO EMPLOYÉ — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

The danger of an employé in a powder factory, coming from the corning room to the motor room in the corning mill to turn on the electric power, being set on fire from the open switch when turning it, was not so certain and imminent, he having turned it 2,400 times before the accident, that he should be held guilty of contributory negligence as matter of law in using the open switch or in not removing his gloves before turning it.

8. MASTER AND SERVANT (§ 246) — INJURY TO EMPLOYÉ — CONTRIBUTORY NEGLIGENCE.

An employé in a powder factory, set on fire in the motor room of the corning mill by a spark from the open switch when throwing it to turn on the electric power, cannot be held guilty of contributory negligence in running to the hydrant post openings in the mill, causing an explosion, instead of going along the side of the building having no openings.

Appeal from Circuit Court, Jackson County; O. Clyde Taylor, Special Judge.

Action by Margaret E. Jewell against the Excelsior Powder Manufacturing Company. From a judgment awarding plaintiff a new trial, defendant appeals. Affirmed.

Kinealy & Kinealy and E. Wright Taylor, for appellant. Botsford, Deatherage, Young & Creason, for respondent.

JOHNSON, J.

Plaintiff, the widow of Lindsey Jewell, sued to recover damages for the death of her husband, which, she alleges, was caused by the negligence of defendant. At the conclusion of the introduction of evidence by plaintiff, the jury, in obedience to a peremptory instruction, returned a verdict for defendant. Afterward, the court granted plaintiff a new trial on the ground that the evidence, aided by certain admissions in the answer, made a case to go to the jury. Defendant appealed from the judgment awarding a new trial.

The injury occurred about 11 o'clock in the forenoon of January 17, 1906, at a powder mill operated by defendant near Kansas City. The plant consisted of some 14 widely separated buildings. In one, the ingredients of the explosive to be manufactured, i. e., nitrate of soda, charcoal, and sulphur, were mixed and taken to the "press" building, where the mixture was pressed into cakes each two feet square and an inch thick. The cakes then were loaded in a tramcar and wheeled to the "corning mill," where they were fed into a series of rollers, revolving towards each other, and were broken into grains. The grains fell into other tramcars and were wheeled to the glaze mill, where they were polished. Thence they were taken to the packing house and packed in iron cans. Jewell, an experienced workman, was in charge of the corning mill and was at his post of duty at the time he received the injuries from which he died eight hours later. The machinery in the corning mill was operated by electricity generated at a power house on the grounds and transmitted by wires to the motor house of the corning mill which was at the southwest corner of the mill and from six to twelve feet distant therefrom. This motor house, a small building, contained a ten horse power, three-phase induction motor. On the wall was a three-blade knife switch, and above it safety fuses. The switch was provided with a handle, which, thrown one way, would turn the electric current into the motor, and, thrown the opposite way, would discontinue the current. There was no fire in or about the corning mill or motor house. It required about 20 minutes to convert a car load of cakes into grains. When a car load was converted and the grains sent to the glaze mill, Jewell would go to the motor house and throw the switch to stop the machinery, and, when another car of cakes came, he would throw the switch to turn on the current. On an average, he would turn the switch on and off twice every hour while the plant was being run. There were no cakes or granulated powder in the mill when Jewell was injured; but there was powder dust over everything, as well as in the air, and this dust, of course, was inflammable and explosive. There was no dust in the motor house, but Jewell's clothing and gauntlet gloves were covered with it. No one saw the beginning of the accident. That the unfortunate man was in the motor house, and that while there his gloves and clothing were set afire, are facts conceded by the pleadings and abundantly established by the evidence. He came out of the motor house ablaze and...