Marquez v. Koch

• Decision Date: 11 December 1913
• Citation: 161 S.W. 648,176 Mo. App. 143
• Parties: MARQUEZ v. KOCH et al.
• Court: Missouri Court of Appeals

161 S.W. 648

176 Mo. A. 143

MARQUEZ v. KOCH et al.

Springfield Court of Appeals. Missouri.

December 11, 1913.

1. MASTER AND SERVANT (§§ 101, 102)—LIABILITY OF MASTER — "REASONABLY SAFE" MEANS.

The term "reasonably safe," within the rule requiring an employer to adopt a reasonably safe manner of doing work, means safe according to the usages, and habits, and ordinary risks of the business, and employers need not adopt a better or less dangerous way.

2. MASTER AND SERVANT (§ 293)—INSTRUCTIONS —CONFLICTING STATEMENTS.

An instruction, in an action for the death of an employé engaged in excavating a sewer trench caused by an explosion of dynamite, that, when an employer is engaged in a business in its nature dangerous, and a casualty occurs which could reasonably have been foreseen, and the employer might have reasonably adopted rules rendering the place reasonably safe, and would probably have prevented the casualty, but failed to do so, he was liable to an employé injured by reason of the failure, though others engaged in the same general line of business might not have adopted any such rules, contained inconsistent statements, for the first part proceeds on the theory that, if the employer could reasonably have foreseen the accident, and might have reasonably adopted rules rendering the place reasonably safe, but failed to do so, he was liable, while the latter part of the instruction eliminated that element in determining the employer's negligence.

3. MASTER AND SERVANT (§ 293)—INJURY TO SERVANT—EVIDENCE—INSTRUCTIONS.

Where, in an action for the death of an employé excavating a sewer trench, caused by an explosion of dynamite, plaintiff introduced evidence on the issue of the usual way commonly adopted of firing shots by others engaged in the same kind of business, an instruction authorizing a recovery if the employer failed to adopt a system that would render the place reasonably safe, though others engaged in the same general line of business might not have adopted any such system, was erroneous.

4. TRIAL (§ 252)—INSTRUCTIONS—ABSTRACT INSTRUCTIONS.

An instruction, in an action for the death of an employé, authorizing a recovery on the jury finding that the employer might have reasonably adopted rules rendering the place reasonably safe, was abstract for failing to point out one or more systems of rules which under the evidence were reasonably safe and might have been adopted to prevent the injury, and to confine the jury to them in determining the question of the employer's negligence, within the issues made by the pleadings.

5. TRIAL (§ 258)—INSTRUCTIONS—REQUESTS— SUFFICIENCY.

Where the court gave ten instructions requested by an employer when sued for the negligent death of an employé, the refusal to give seven other requested instructions was not erroneous.

6. DEATH (§ 32) — ACTION FOR NEGLIGENT DEATH.

A widow suing for the negligent death of her husband, leaving surviving children, must sue for herself and as trustee for the children, so that all the damages may be recovered in one action.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Maria Rodrigues Marquez against V. E. Koch and another, partners as Koch & Kost. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Mercer Arnold, of Joplin, and Skidmore & Walker, of Columbus, Kan., for appellants. C. A. McNeill, Chas. Stephens, and E. V. McNeill, all of Columbus, Kan., and Lee Shepherd and I. N. Threlkeld, both of Joplin, for respondent.

ROBERTSON, P. J.

Action for death of plaintiff's husband by wrongful act of the defendant. Plaintiff prevailed below, and the defendants have appealed.

The petition alleges that on and prior to August 13, 1912, the defendants were excavating in Columbus, Kan., preparatory to the construction of a sewer, and that the plaintiff's husband, Clemente Marquez, was killed on that day by reason of an unexpected explosion of dynamite in the ditch where the plaintiff's husband was working; that plaintiff and the deceased were married about two years prior to the accident; that her husband died intestate, and without issue, and that no administrator, executor, or other legal representative of his estate had been appointed at any place or time; and that "the plaintiff is the widow and next of kin of the deceased," and that any sum recovered in this action will inure to her sole benefit. Then follows allegations specifically describing the excavation, and that after the excavation proceeded a short depth stone and rock were encountered that could not be removed without blasting, and in order to accomplish that end, and to expedite the work, dynamite was used; "that it was the custom and practice of said defendants to insert a large number of pieces or sticks of dynamite in said holes drilled in said sewer ditch; * * * that defendants had drilled about 30 or 40 such holes, * * * and had inserted in each of the same a large number of sticks of dynamite, * * * and same had fuses attached thereto; that said defendants caused the fuses to be lighted and the dynamite fired for the purpose of shooting off and discharging the same; and that on said 13th day of August, 1912, one of the charges so placed by the defendants prior to said time failed to explode from the lighted fuse, and failed to go off, and the said Clemente Marquez was sent by the defendants, with other employés, to the said ditch to work as a picker and shoveler, and, while striking with a pick while at work in the line of his duty as such employé in said ditch, he struck said undischarged and unexploded load and charge of said dynamite, which was covered up and concealed by dirt and rock, which said charge exploded with great and terrible force and violence," thereby killing the plaintiff's said husband. The petition then charges the negligence of the defendants as follows:

"Plaintiff alleges and avers that defendants were guilty of gross carelessness and negligence in that they failed and neglected to keep, maintain, and promulgate a reasonable code of rules, plan, or system whereby it could, with reasonable certainty, ascertain whether or not all of the said charges of dynamite so placed in the various holes as aforesaid had exploded or had been discharged, and in carelessly and negligently failing and neglecting to have and maintain a proper plan or system of inspecting the said sewer ditch and working place at the point where said charges of dynamite had been placed, and in failing to use any reasonable means, system, or method for the purpose of ascertaining whether or not all of said dangerous and explosive charges of dynamite theretofore placed therein had been exploded, and said shots and charges of dynamite were so placed, arranged, and fired so that from 4 to 10 of the same would go off at once, so that defendants did not know and could not tell how many of said shots had gone off, and by reason of such carelessness did not and could not inform the plaintiff and its employés, and they could not know the number of shots that had gone off or the number that had failed to go, and had no knowledge or means of knowledge thereof, and said defendant failed and neglected to furnish said Clemente Marquez a reasonably safe place in which to work, which failure on the part of said defendants caused his death at the time and place and in the manner and by the means aforesaid, all of which facts were to defendants well known, or with the use of reasonable care would have been known, and to plaintiff's damage in the sum of $10,000."

The petition alleges that two sections of the 1909 General Statutes of Kansas were, at the time of the accident, and are now, in force in said state, as follows:

"Sec. 6014. Action for Death by Wrongful Act—Limitations—Damages. 419. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages...