Livengood v. Joplin-Galena Consolidated Lead & Zinc Co.

• Decision Date: 15 January 1904
• Citation: 77 S.W. 1077,179 Mo. 229
• Court: Missouri Supreme Court
• Parties: LIVENGOOD v. JOPLIN-GALENA CONSOLIDATED LEAD & ZINC CO.

77 S.W. 1077

179 Mo. 229

LIVENGOOD v. JOPLIN-GALENA CONSOLIDATED LEAD & ZINC CO.

Supreme Court of Missouri.

January 15, 1904.

MASTER AND SERVANT—PERSONAL INJURIES— MINES—EXPLOSIVES—INFORMATION OF DANGER—EXAMINATION OF PREMISES—DELEGATION OF DUTY—FELLOW SERVANTS.

1. The operator of a steam drill used in a mine to drill holes into the earth in which to insert explosives is a fellow servant of his helper.

2. Where a steam drill was used in a mine to drill holes into the earth in which to insert explosives, the master was not negligent in not making an examination, after an explosion, in order to ascertain whether the shots in all the holes had been exploded before renewing the use of the drill, but he might cause such examination to be made by the operator of the drill and his helper.

3. Where a newly employed helper of the operator of a steam drill used in a mine in blasting had had some experience, and it was apparent to him that the mine was being worked in this manner, and his first work was to assist the operator in "leveling off" for the purpose of renewing the drilling, the master was not liable for failing to inform him that shots had been exploded at that place the preceding week.

Valliant, J., dissenting.

In Banc. Appeal from Circuit Court, Jasper County; Jos. D. Perkins, Judge.

Action by Walter Livengood against the Joplin-Galena Consolidated Lead & Zinc Company. Judgment for plaintiff, and defendant appeals. Reversed.

McReynolds & Halliburton, for appellant. Thomas & Hackney, for respondent.

MARSHALL, J.

The following opinion heretofore rendered in Division No. 1 is hereby adopted as the opinion of the court in banc:

This is an action for $30,000 damages for personal injuries received by the plaintiff by an explosion in defendant's mine, near Carterville, on May 21, 1900. The plaintiff recovered a judgment for $10,000, and the defendant appealed.

The negligence charged in the petition is that the defendant failed to furnish the plaintiff a reasonably safe place to work, and to take necessary precautions to render plaintiff's service reasonably safe, and to inform the plaintiff of any and all hidden danger, and that, disregarding its duty in this regard, it "negligently directed the plaintiff and his co-workmen engaged in operating said steam drill to drill three holes in the face of a drift in defendant's said mine, in the face of which drill holes had been previously made by other servants and employés of the defendant, and charged and loaded with dynamite and other explosive substances, for the purpose of breaking and loosening the ground in said drift, and which said shots so loaded had been previously, by other servants of defendant, attempted to be shot off and exploded, but that in fact one of said shots so previously charged in said drift had not been fired, and had failed to explode, of which fact the plaintiff was ignorant at the time he went to work in said drift making said drill holes as aforesaid; and that defendant had failed and neglected to inform plaintiff that one of said shots so previously made had not been exploded, and remained in the face of said drift; that it was the duty of the defendant, after attempting to fire said previous shots, to inspect said drift, to ascertain whether or not all of said shots so previously loaded had been shot off and discharged, and to advise plaintiff and his co-workmen of the fact, before putting them to operate said steam drill in the face of said drift; but that the defendant, wholly disregarding its said duty to plaintiff, negligently failed to inspect the face of said drift, to ascertain whether or not all of the said shots so previously loaded in the face of said drift had been discharged; that the defendant, by the exercise of ordinary care and diligence in the inspection of said drift, after attempting to fire off said previously loaded shots, could have ascertained that one of said shots had not been exploded, which said inspection and examination the defendant negligently failed to make or, if he did make it, negligently and carelessly failed to notify the plaintiff that one of said shots so previously loaded had not exploded, and of the danger which plaintiff ran in attempting to operate said steam drill and to drive the three drill holes aforesaid in the face of said drift; that by reason of said negligence of the said defendant, and plaintiff believing that the said place where plaintiff was sent to work by the defendant was reasonably safe for him to operate said steam drill therein, and believing that the defendant had discharged its duty to the plaintiff, and had made all necessary examinations of said drift after the previous attempted shots, while operating said drill and drilling one of said drill holes in the face of said drift, as directed by the defendant, and while exercising ordinary care, plaintiff drove a drill hole on or near to the said drill hole where the previous shot had not been discharged as aforesaid, and that by means of the said drilling by plaintiff, after the said drill hole had been driven to a depth of some two feet, the said drill came in contact with the giant powder contained in the previous charge, by means of which the said previous charge in said drill hole was exploded and the said shot fired; and that by the explosion of said shot, plaintiff was greatly injured and wounded," etc. The answer is a general denial, a plea of contributory negligence, and of assumption of risk.

To maintain the issues on his behalf, the plaintiff was called as a witness in his own behalf, and testified that he was 19 years old; that on Monday morning, May 21, 1900, he applied to one Dixon, the ground boss of the defendant's mine, the "Gray Goose," for employment; that Dixon asked him if he had ever worked the machine or was a machineman, and he told him he had worked with a machine a little bit, and Dixon told him to go in the mine and help Wilkie, who was running a steam or compressed air drill; that he went down into the mine and found Wilkie, and they "cleaned out" and set up the machine, and drilled two holes, and were drilling a third when an explosion occurred by reason of the drill coming in contact with an unexploded shot (or charge of dynamite) in a drill; that the plaintiff was most seriously and distressingly injured, and crippled and disabled for life, lost his eyesight, and his right hand and left arm were disabled, his left leg was injured, a rib was broken, and he had about a hundred small slivers of rock driven into his body. On cross-examination, he said he had been working around mines for about four or five years, and had before worked a little—not a great deal—with drills; that he told Dixon he had worked a little bit with drills; that Dixon told him he wanted a helper or backer for the machineman; that he had been around Carterville about four days, and prior to that had worked around Joplin; that he had no prior acquaintance with this mine; that when he went down into the mine it showed that it was being worked, but he could not tell how long before; that when he got down in the mine he helped Wilkie to "level off" and clean up the machine. The defendant asked him if he had not heard of a great many explosions caused by drilling into unexploded shots. The plaintiff objected to the question, the court sustained the objection, and refused to allow the defendant to show that the plaintiff had so heard before he went to work in this mine. The plaintiff then called a doctor, who testified to the character of the plaintiff's injuries, and then the plaintiff rested. The defendant demurred to the evidence. The court overruled the demurrer, and the defendant saved an exception.

To sustain the issues on its part, the defendant called John Dixon, the foreman of the mine, who testified that he had been engaged in mining for about 24 years, and had had 17 years' experience in drilling; that this mine had been in constant operation for about three months before the accident; that when the plaintiff applied to him for work he asked him if he was acquainted with machine work, and he said he was not a professional machineman, but he had helped a little in New Mexico; that he employed him as a helper to Wilkie; that it is the duty of the drillman, after shots have been fired, to examine and find out whether or not all the shots have been exploded before drilling any more holes; that he is furnished with a "spoon" and hose, with air in it, to clear the "face," so he can see clearly whether there is any powder or an unexploded shot in a drill hole; that when shots have been fired it is the duty of the machineman to make such examination the first thing the next morning before doing any other work, and if he finds that any shots have not exploded to report that fact to the foreman, and to go to work somewhere else in the same or, if necessary, another drift; that it is not the duty of the foreman to make such examinations; that it is the duty of the helper to assist the machineman in his work; that he did not tell the plaintiff that shots had been fired on Saturday night; that he did not know that any of the shots had not exploded. The defendant also called six other expert, practical, and experienced miners, foremen, etc., who testified that it is the duty of the machineman to examine and see whether any shot has not been exploded before doing any more drilling, and that it is the duty of the helper to...