Knorpp v. Wagner

• Decision Date: 30 March 1906
• Citation: 93 S.W. 961,195 Mo. 637
• Parties: KNORPP v. WAGNER et al.
• Court: Missouri Supreme Court

93 S.W. 961

195 Mo. 637

KNORPP v. WAGNER et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT —PLACE TO WORK—INSPECTION.

An expert drillman in a mine, to whom was delegated the duty of inspecting the drill holes after the explosion of charges of dynamite, to avoid accidental explosions, cannot complain of the method or character of inspection, nor that the master did not otherwise inspect a hole, since he knew and adopted the plan of inspection made.

2. SAME—ASSUMPTION OF RISK.

Where an expert miner voluntarily accepted and continued in employment in a mine having no air shaft, where none was practicable and no squib shots could be fired during working hours to test the safety of drill holes, he assumed the risks incident to employment as a drillman under those circumstances.

3. SAME—COMPLIANCE WITH COMMANDS.

Where the duty of inspection of drill holes in a mine after the explosion of dynamite was delegated to an expert drillman, he had no right, after finding on inspection that a place was unsafe for work, to rely on the assurance of its safety by the superintendent of the mine who had less information than himself, nor to relieve himself of the assumption of risk by compliance with the superintendent's command to go ahead with the work.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by William S. Knorpp against A. M. Wagner and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Thomas & Hackney, for appellants. McAntire & Scott, for respondent.

LAMM, J.

From a judgment of $6,150 rendered in favor of plaintiff, a miner, known as a "drillman," for personal injuries alleged to be received at defendants' hands through certain specified acts of negligence, defendants, a mining partnership in the Joplin district, appeal.

One of the assignments of error is that the court should have sustained a demurrer at the close of plaintiff's case and, failing in that, should have given a peremptory instruction for defendants at the close of all the evidence. This assignment of error calls for an understanding of the issues and the material evidence. Omitting mere matters of inducement and descriptive of the environment, the charging part of the petition, after setting forth certain duties alleged to be owing from defendants to plaintiff as an employé, is as follows: "Plaintiff says and alleges that the defendants, wholly neglecting and disregarding their duties in that behalf, neglected to furnish plaintiff a reasonably safe place in which to work; that the defendants negligently failed to inspect the ground of said drift and use ordinary care and precaution to render plaintiff reasonably safe and to inform plaintiff of any and all latent dangers attendant on his said employment; that defendants negligently failed to use ordinary care to supply plaintiff with reasonably safe and sufficient appliances necessary for plaintiff to work in reasonable safety, and negligently refused to permit plaintiff to use appliances and precautions as were necessary for plaintiff to work in reasonable safety; that the defendants carelessly and negligently exposed plaintiff to danger; that the defendants carelessly and negligently commanded and directed the plaintiff to drill and work in an exceptionally dangerous place; that the defendants knowing that the ground where plaintiff was working was defective and dangerous, did negligently and carelessly order the plaintiff to continue work thereat; that all of said defects and danger referred to were known to the defendants or might by the exercise of ordinary care on their part have been known to them; that the same was not known and could not, by the exercise of ordinary care on his part, have been known to the plaintiff; that on said date, while plaintiff was in the employ of the defendants and while working in the exercise of ordinary care at said point in said drift of defendants' mine, defendants wholly disregarding their said duty to plaintiff, negligently commanded and directed this plaintiff, employed in operating said machine drill, to drill a hole in the face of said drift in said mine at a point where said face had on a previous date been drilled into and the drill holes filled with dynamite or other explosives; that all of the dynamite or other explosives in at least one of said drill holes had not been shot or fired off, of which fact this plaintiff was in ignorance; that defendants failed and neglected to inform plaintiff that all the dynamite or other explosives in at least one of said drill holes had not been shot or fired off, but that plaintiff having used ordinary care in inspecting said drill hole, and having used every precaution and appliance within plaintiff's control, and which was furnished him and permitted by defendants, and suspecting that there might be danger there, so informed defendants, but defendants assured him that the same was safe and all right, and commanded and directed plaintiff to continue working thereat; that plaintiff, relying on the superior knowledge and assurance of defendants, continued working thereat as commanded and directed, and while exercising ordinary care, the machine drill which he was operating struck the shot or load of explosives so left in the said hole of said face, as aforesaid, and thereby caused an explosion, knocking plaintiff down, injuring his body, putting out one of his eyes, paralyzing the other eye," etc. Of the three defendants, one, Wagner, answered by a general denial a plea of contributory negligence, and averring further that plaintiff was an experienced miner, familiar with the conditions of the drift in which he was working, had caused the condition therein existing and voluntarily assumed the risk of the injuries received by him. The joint answer of the other two defendants, McRoberts and Best, was a general denial, fortified by a plea of contributory negligence and voluntary assumption of the risk. The reply put in issue the new matter pleaded in the answers.

Defendants owned and operated a mine known as the Superior mine in a district known as the "Cornfield" in Jasper county, and were engaged in exploiting said mine for lead and zinc ore. Appellant McRoberts was the superintendent of the mine, and his duties lay on top as well as under ground. Under him was a foreman, Collins, designated as a ground boss—ground, in this instance, meaning underground—who had charge in the mine. The word "ground" is also used among miners to designate the stratum of ore-bearing rock being mined. In this instance, the ground was known as "shooting ground"; i. e., it was too solid to be manipulated otherwise than by shooting or explosion of dynamite in holes drilled by drilling machines operated by compressed air. The shaft of the Superior mine had been sunk 150 feet. From its bottom, a drift or gallery had been run some distance in the ore-bearing rock, 9 feet in height and with a face of 60 feet and on the bench or face of this drift, respondent worked as a "head drillman"; i. e., he ran a drilling machine with the aid of another miner known as a "helper." This drilling machine was movable and was fastened to a column or post wedged from time to time to the roof and floor of the mine and moved as need called. On this post there was an arm and to this arm a clamp or "seat," and to the latter the drilling machine proper was attached. This clamp was movable on the arm and was so arranged that several drill holes could be drilled by moving the machine on the arm. The chisel or drill proper is called a "steel." Some of these steels were, say, a foot long and were called "starters"; i. e., they started the drill holes. After starting a drill hole the starter is removed and the main steel inserted in the drill machine. These principal steels varied in length, the one in use in this case would drill a hole, say, 5 feet in depth. The drill holes had a tip or dip down, enough "to carry water," but were substantially level with the floor, though the machine could be adjusted to work crab fashion; i. e., to bore up, down, or sidewise. The angle of this dip was optional with the drillman, the object to be attained being to have the dip at such an angle as to carry water (for a reason unknown to us) and at the same time to get an even distribution of the force of the explosion from the collar down to the bottom of the hole and produce a better break of "dirt." The mouth of a drill hole is called a "collar." The method of blasting or breaking ore ground was to insert sticks of dynamite or giant powder in these drill holes and tamp them in. When filled with dynamite to, say, within a foot of the collar, a fulminating cap was inserted and a fuse, which latter projected beyond the collar to be lit at firing time. Sand and gravel were then tamped about the fuse, and the affair was ready to explode. The Superior mine was a new mine, and we speak advisedly when we say that the uncontradicted evidence of appellant showed it had not developed far enough to provide an air shaft, though to what state of development a mine should come before an air shaft could be provided, is not shown. Because of the absence of this air shaft, orders were given (and it was a rule in that mine) that dynamite should not be exploded during working hours. The mine ran no night shift and therefore the dynamite charges were fired at quitting time of an evening, since to explode dynamite or giant powder in a mine without an air shaft made the mine smoky and the air impure and unfit for use.

Plaintiff was a skilled miner, in fact, considered himself the best in appellants' employ. He had worked in all the branches of mining labor, from "shoveler" up to ground-boss, had been "powderman" and understood the effect and the handling of mining powder; and had been a drillman for three years and was highly proficient as a driller. He had been in appellants' employ for...