Kilmer v. Connecticut Zinc Corporation
| Decision Date | 14 February 1921 |
| Parties | T. R. KILMER, Respondent, v. CONNECTICUT ZINC CORPORATION, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jasper County.--Hon. Joseph D Perkins, Judge.
REVERSED.
Judgment reversed.
McReynolds & Blair, Ray Bond, and John L. Flanigan, for appellant.
(1) When plaintiff turned his back to the danger of falling rock when he might have faced it, in safety, he was guilty of contributory negligence, as a matter of law 26 Cyc. 1249 1257, and 1258; Montgomery v. Railroad, 109 Mo.App. 88; Sparks v. Railroad, 31 Mo.App. 114, 115; Schiller v. Breweries Co., 156 Mo.App. 579, 580; Craig v. Railroad, 54 Mo.App. 527; Smith v. Box Co., 193 Mo. 737; Degonia v. Ry. Co., 123 S.W. 816, 224 Mo. 564; Doerr v. Brewing Association, 176 Mo. 556, 557; Van Dyke v. Railroad Co., 130 S.W. 7, 230 Mo. 259. (2) Plaintiff's failure to watch out for falling boulders, when that was his contractual duty, constituted contributory negligence, or assumption if risk. 26 Cyc. 1105, 1106; Gleeson v. Mfg. Co., 94 Mo. 206; Roberts v. Telephone Co., 69 Mo. 383; Rowden v. Mining Co., 117 S.W. 697, 136 Mo.App. 376; Knorpp v. Wagner, 195 Mo. 663, 668; Hulse v. Home Tel. Co., 147 S.W. 1124, 164 Mo.App. 126; Gordy v. Coal & Coke Co., 132 S.W. 21, 151 Mo.App. 455; Tallman v. Nelson, 125 S.W. 1184, 141 Mo.App. 589. (3) Defendant was under no duty to furnish an extra watchman to warn plaintiff, wherefore: (a) The plaintiff wholly failed to make a case; or, (b) Defendant's Instruction E should have been given. Corniff v. Railroad, 124 Kentucky, 763, 99 S.W. 1155, Ring v. Railroad, 112 Mo. 220; Coleman v. Railway, 23 Ken. 401, 63 S.W. 39; Maher v. Co., 169 App.Div. N.Y.) 1; Cited in 144 Mo.App. 470; Silas v. Lighting Co., 73 Vt. 35, 50 Rep. 554; McGorty v. Tel. Co., 38 A. 359, 69 Conn. 635; Flynn v. Campbell, 35 N.E. 453, 3 Labatt on Master & Servant, (2 Ed.), sec. 1113, page 2943.
W. R. Shuck for respondent.
(1) In Stevens v. Railroad, 96 Mo. 207, the court says: "It is held in so many cases where the servant knowingly incurs the risk of defective machinery, still if not so defective as to threaten immediate injury, it is for the jury to determine as to whether there was negligence upon his part," and in connection with that case, the court included the following language, from Thompson on Negligence, approving such doctrine: "If the master orders the servant into a situation of danger and he obeys and is injured thereby, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, unless where he was not entirely free from choice." In Rigsby v. Oil Well Supply Company, 115 Mo.App. 297, it is said: "A servant has a right to agree to use implements which are not in perfect order if he desires to uphold otherwise abridges unnecessarily the freedom of contract." On the other hand, courts should be careful about presuming that a servant accepts a particular risk, unless the conclusion is inevitable whether he freely consented to the risk or was constrained in some manner, such as fear of losing his employment, is a question for the jury. In the case of Jewell v. Bolt Company, the court says: "The usual and legal duty of every employer is to provide all means for the safety of those in his employment."
Cox, P. J., not sitting.
The plaintiff recovered a judgment against defendant for personal injuries which he received while working as a watchman and boulder popper in a mine owned and operated by the defendant company. It is a master and servant case.
The ground in which the defendant was operating its mine was old mining ground which had been operated for a good many years and the ore was dropped from one drift to another through what was called "pull holes." That is, the ore was shot out in an upper drift, dropped through these pull holes to a drift below, or more accurately, was fed through the pull holes, they being funnel shaped, and as the ore would go through it would fall to the lower drift and pile up close to the ceiling in the lower drift making a pile cone-shaped, and as the ore would come through the pull hole it would run down the sides of this pile which stacked up on the lower drift making the outside of the cone run at an angle, from the floor up to the pull hole, of something like 45 degrees. When rocks and boulders would come through they would roll down this incline to the floor below where men were at work shoveling it up into cans and carrying it away to a shaft. In order that these shovelers might be protected from rocks that would come bouncing down this incline and injuring them, the plaintiff was hired to stand there and watch when this dirt and rock would start rolling down and give them warning so they could get out of the way. The shovelers shoveling the dirt from the foot of the slope naturally made the dirt and rock, by force of gravity, come rolling down from the top. In connection with his duties to watch for the boulders and rock which would roll down, he was also given the duty of breaking those boulders which were too big for the shovelers to put into cans and in doing this he drilled holes with a hand drill or jack-hammer, operated by compressed air, ordinary tool that was used in and about mining disand which could be handled by one man. It was the tricts for drilling small holes. On the day of his injury there had been several boulders come down, and it was the duty of these watchmen, there being some four or five in the mine, to watch and give warning and to break the boulders. Plaintiff had been working in this double capacity for more than four months before the accident. On the day of the accident there was a boulder at the foot of the slope or on the platform, which needed breaking. The dirt had been removed from around the foot or face of the boulder and back on the sides, and it became necessary to get this one out of the way. It was about four or five feet high. The plaintiff took the hand drill, or jack-hammer, got on top of this boulder and was drilling a hole in the top of it, with his back turned...
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