Mihelich v. Mignery
| Decision Date | 03 April 1911 |
| Parties | JOSEPH MIHELICH, Respondent, v. DELIA MIGNERY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
Judgment reversed.
Wm. E Stringfellow for appellant.
(1) The only duty resting on the master in this case was to give timely warning to plaintiff of the shot to be fired. There are a limited number of cases reported in which a quarry employee was injured by rock discharged by a blast. We have been unable to find any reported case in which the employer was held to any other duty than merely to warn the employees of the shot about to be fired in time enough to enable them to seek a position of safety. An examination of the following blasting cases, in which the negligence alleged was failure to warn of an approaching shot, will show that to be the limit of the masters duty. Zeigenmeyer v. Lime & Cement Co., 113 Mo.App. 330; Belleville Stone Co. v Mooney, 39 A. 764; Hendrickson v. U. S. Gypsum Co., 105 N.W. 503; Grimaldi v. Lane, 59 N.E 451, 177 Mass. 565; Jacobson v. Hobart Iron Co., 114 N.W. 951; McMahon v. Bangs, 62 A. 1102. (2) Plaintiff is held as a matter of law to have heard the warnings given. Miller v. Walsh, 145 Mo.App. 135. (3) Plaintiff's petition claims and plaintiff's first instruction throws a higher duty on defendant than required by law. But the requirements of that instruction, while erroneous, were fully complied with in this case. No negligence having been shown, the injury must be charged to one of the risks of the business assumed by the plaintiff. We understand that assumed risk is not a defense in this state if the master in negligent. But in the absence of the master's negligence, the doctrine is in full force. The master is not an insurer. Dickinson v. Jenkins, 144 Mo.App. 136; Beebe v. St. Louis Transit Co., 206 Mo. 419; Knorpp v. Wagner, 195 Mo. 637. Even in extra hazardous employments, the law does not impose upon the master the duty to provide a safe place, but only that of employing reasonable care to provide one which is reasonably safe. Spencer v. Bruner, 126 Mo.App. 94; Bloomfield v. Worster Con. Co., 118 Mo.App. 254; 26 Cyc. 1112. A servant entering an extra hazardous employment assumes--in the absence of the master's negligence--not only the ordinary risks of his employment, but also the risks of the extra hazards, the dangers of which he knew and understood. Zeigenmeyer v. Lime & Cement Co., 113 Mo.App. 330; Knight v. Donnelly Bros., 131 Mo. 160; Carter v. Baldwin, 107 Mo. 228; Watson v. Coal Co., 52 Mo.App. 366. (4) An employer is not required to furnish a place to work safe from dangers which are temporary and transitory only, and arise from the nature of the work. The employee assumes the risk of such dangers. Zeigenmeyer v. Lime & Cement Co., 113 Mo.App. 330; Meehan v. Railroad, 114 Mo.App. 404. An employee of a quarry, having been warned of an approaching explosion, cannot recover if struck by the falling stone, as such falling stone was an incident of the business, of which he assumed the risk. Zeigenmeyer v. Goetz Lime & Cement Co., 113 Mo.App. 330. (5) It is the duty of an employer to guard against probable, not possible dangers. Lawless v. Laclede Gas Light Co., 72 Mo.App. 683. Plaintiff was conclusively guilty of such negligence as to bar a recovery. Where a workman voluntarily places himself in a dangerous place where his employer does not anticipate or require his presence, the injuries received are the result of his own lack of common prudence. Evans v. Railroad, 178 Mo. 508.
C. W. Meyer for respondent.
Plaintiff was an employee of defendant as laborer in her rock quarry near St. Joseph. He was severely and permanently injured by a blast which threw a heavy rock, upon him, and this action is to recover damages on the ground of negligence charged against defendant's servants in charge of the operation of the quarry. He recovered judgment in the trial court.
Plaintiff was an experienced workman at rock quarries and had worked at this quarry for seven years. This is an important fact as it serves as a guide to a proper interpretation of much of the evidence. The quarry may, in a general way, be said to be located in a hill side near to a public and much travelled road. The ledge in which holes were drilled and blasts set off, was between ten and twelve feet high. Below was a comparatively level or free space. Blasting was done by drilling holes a few feet apart on the ledge of rock, inserting the explosive powder or dynamite and attaching electric wire which ran away to a safe distance to a battery, where the exploder would set it off. Before a blast was made warning was called out and time given for every one, including teams, to get away. Then the exploder would stand at his place and, as a precaution, call out "fire" in a loud voice and wait three or four minutes before setting off the electric spark.
The important and controlling factors in the case are either conceded or else established by undisputed evidence, and we, therefore, need not refer to much of the detail which has been gone over both in the oral and printed argument. Plaintiff was right at the scene of the explosion before and up to its occurrence. He assisted a "straw boss" in finishing drilling the holes and in removing a hand drill. He stated that he knew the explosion was ready to be fired, and he necessarily saw the men and teams getting off to places of safety, but he said he did not know "what time they were was going to shoot," and that the boss always notified the men before shooting. This notice, he said, was by "hollering out." He stated more than once that he did not hear any notice given. But that there was notice given is not to be doubted. It was testified to by practically all the others at the quarry and the important fact is that all went to places of safety excepting the plaintiff. That it was heard by the plaintiff cannot be doubted; notwithstanding the evidence did not show that any one saw him do anything in response to the notice, as was the case in Miller v. Walsh, 145 Mo.App. 131, 129 S.W. 458, and Prash v. Ry. Co., 151 Mo.App. 410.
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