Jewell v. Excelsior Powder Manufacturing Co.

• Decision Date: 17 June 1912
• Citation: 149 S.W. 1045,166 Mo.App. 555
• Parties: MARGARET E. JEWELL, Respondent, v. EXCELSIOR POWDER MANUFACTURING COMPANY, Appellant
• Court: Kansas Court of Appeals

149 S.W. 1045

166 Mo.App. 555

MARGARET E. JEWELL, Respondent, v. EXCELSIOR POWDER MANUFACTURING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 17, 1912

Appeal from Jackson Circuit Court.--Hon. Herman Brumback, Judge.

AFFIRMED.

Judgment affirmed.

Kinealy & Kinealy and E. W. Taylor for appellant.

(1) The court erred in admitting Mr. Lemley's conversation with the deceased after the explosion. Redman v. Railroad 185 Mo. 11; Leahy v. Railroad, 97 Mo. 165; Dunlap v. Railroad, 145 Mo.App. 215; Lee v Railroad, 112 Mo.App. 372. (2) The court erred in admitting the testimony of witness, Freeman Bailey, as to the switch and as to the contrivances mentioned in the specifications of negligence set out in the petition. Turner v. Haar, 114 Mo. 335; Graney v Railroad, 157 Mo. 666; Steinhauser v. Sprawl, 127 Mo. 541; Berning v. Medart, 56 Mo.App. 443; Wilkinson v. Bottling Co., 154 Mo.App. 563. (3) The court erred in refusing to instruct the jury to find for the defendant. There was no evidence tending to establish the charges of negligence in the petition and it appeared that Jewell's negligence was certainly a contributory, if not the sole immediate, cause of his death.

Botsford Deatherage & Creason for respondent.

(1) The court did not err in refusing defendant's demurrer at the close of plaintiff case. Buesching v. Light Co., 73 Mo. 231; Toohey v. Frivin, 96 Mo. 109; Soelder v. Railroad, 100 Mo. 681; Connoly v. Press Co., 166 Mo. 463; Jewell v. Powder Co., 143 Mo.App. 200. (2) In the absence of evidence to the contrary, the injured party is presumed to have been in the exercise of ordinary care at the time he received his mortal injuries. Smily v. Ribo, 160 Mo. 635; Miller v. Rybo, 164 Mo. 198; 16 Cyc. 1057. (3) The court did not err in the admission of the statement of witness Lemley as to what Mr. Jewell said to him (Lemley) as to how the accident occurred, immediately after the explosion and while Mr. Jewell was still burning and on the ground. The statement of Mr. Jewell to Mr. Lemley was clearly a part of the res gestae. Brownell v. Railroad, 47 Mo. 344; Harrison v. Stowe, 57 Mo. 95; Leahy v. Railroad, 97 Mo. 168; Entwhistle v. Feighner, 60 Mo. 215; State v. Martin, 124 Mo. 524; State v. Lockett, 168 Mo. 485. (4) The court did not err in admitting the testimony of Freeman Bailey as to the switch and as to the contrivance mentioned in the specifications of negligence set out in the petition. He was highly qualified to testify as an expert. (5) There was abundant evidence to warrant the submission of the question to the jury as to whether or not Leonard Jewell came to his death from burns caused by a spark from the electric switch in the motor house. Jewell v. Powder Co., 143 Mo.App. 200; Dumphy v. Stock Yards Co., 118 Mo.App. 512; Ray v. Poplar Bluff, 70 Mo.App. 252; Trigg v. Lumber Co., 187 Mo. 234.

OPINION

JOHNSON, J.

--This is a suit by the widow of Lindsay Jewell to recover damages for the death of her husband which she alleges was caused by negligence of defendant, his employer. At the first trial the jury in obedience to a peremptory instruction returned a verdict for defendant. Subsequently the court sustained a motion for a new trial on the ground that the evidence aided by admissions in the answer of defendant made a case to go to the jury. Defendant appealed but we affirmed the judgment granting a new trial.

After our mandate was issued defendant filed an amended answer in the circuit court which, in addition to a general denial, interposed pleas of contributory negligence and assumed risk but omitted the admissions we held aided plaintiff on the issue of the proximate cause of the injury. A second trial of the case resulted in a verdict and judgment for plaintiff in the sum of thirty-five hundred dollars and after unsuccessfully moving for a new trial and in arrest of judgment defendant again appealed. A statement of the facts considered on the former appeal appears in the official report of the case and we will not repeat those facts but will content ourselves with stating the additional facts we find are material to an understanding of the questions of law now before us for determination.

There are six specifications of negligence in the petition, but two of them were withdrawn from the jury and may be dismissed from our consideration. The remaining four relate to the maintenance by defendant of an open knife-blade switch in the motor house adjacent to the corning mill. Plaintiff charges that defendant was negligent; first, in not having an oil switch instead of a knife-blade switch; second, in not providing an automatic current breaker operated by a push button at a safe distance from the switch; third, in not having a long-handled instead of a short-handled switch, and, fourth, in not having the switch enclosed in a dust proof cabinet. It is the contention of plaintiff that while Jewell, in the performance of the duties of his employment, was operating the switch either to turn on or shut off the current, an arc was created and a spark emitted from the switch that fell on his powder begrimed clothing or person and set him afire.

Defendant admits the cause of the injury was the ignition of Jewell's clothing while he was operating the switch and in the original answer defendant alleged that the fire came either from a spark from the switch or from a match carelessly lighted by Jewell. Counsel for defendant argued on the former appeal as they do now, that inasmuch as the evidence of plaintiff showed that the injurious spark could have been thrown out from the fuse or motor as well as from the switch, plaintiff had failed to show a sufficient causal connection between the injury and the negligence averred. We rejected the argument on the ground that since there was no evidence to support the theory that a match had caused the injury, the answer must be considered as an admission that the fire came from the switch and that such admission relieved plaintiff of the burden of proving the fact covered by the admission. The amended answer in omitting this admission threw back on plaintiff the burden of proving not only the negligence of defendant in maintaining a defective switch for the use of its servant, but also that such negligence was the proximate cause of the injury. In other words plaintiff, to recover, must prove that a spark from the switch was the cause of the injury. Given the fact that the spark could have emanated from the switch, fuse, or motor, mere proof that the fire originated in the motor house would leave the causal relation of the injury to one or more of the pleaded acts of negligence in the domain of conjecture and speculation and would not satisfy the burden plaintiff must discharge in order to recover.

The evidence bearing on the issue of proximate cause adduced by plaintiff thus may be stated: A witness introduced by plaintiff who was defendant's chief engineer at the times of the construction of the plant and of the injury, testified that he urged defendant's president and superintendent to put in an oil switch on the ground that an open switch would be unsafe, but his suggestion was overruled. After its installation the switch in being opened or closed sometimes produced an arc and emitted sparks and there is testimony to the effect that Jewell had complained to the superintendent of the tendency of the switch to throw sparks and that the superintendent told him to "Go ahead, some day we will have an oil switch." Immediately after being set ablaze, Jewell ran out of the motor house which was about six feet southwest of the corning mill and, intending to go to a hydrant near the northeast corner of the mill, ran east along the south end of the mill and turned north along the east side. He passed by open doors and fire from his person exploded the powder dust in the mill. Fire from the explosion enveloped him and burned off all his clothing leaving him naked. His skin was burned and charred from head to foot. He fell down but arose and proceeded towards the "wash house" six hundred feet or more away. Two workmen who saw and heard the explosion and heard his cries ran to him and assisted him to the wash house. To them he exclaimed, "I am done for now." Another workman attracted by the explosion and outcries joined him on his way to the wash house and immediately asked him how the accident happened. He replied that he "got fire from the switch and in getting around to the water he tumbled and fell down and he thought if he had not tumbled and fell down he would have made it and got the fire out." He remained at the wash house until the physician arrived when he was removed to a bed in the office. There he remained until he died. Defendant strenuously objected to the admission of testimony relating to the statements made by Jewell on his way to the wash house. At first the court sustained the objection but later decided to admit the evidence. The importance of this ruling, the correctness of which is challenged by defendant, is so great that we shall turn at once to the consideration of its propriety. Though it is clear that Jewell realized his death was certain and imminent, his ante mortem statements relating to the cause of his injury were not admissible as dying declarations since the rule is well settled that such declarations cannot be regarded as evidence in civil actions.

"Modern decisions," says Judge Wagner in Brownell v Railroad, 47 Mo. 244, "clearly establish the doctrine that the rule permitting dying declarations to be given in evidence applies exclusively to criminal prosecutions for felonious homicides and has no reference to civil cases." The important question for solution is whether the declaration should be regarded as a verbal act of the...