Sherwood v. Halpin-Dwyer Const. Co.
| Decision Date | 07 February 1916 |
| Docket Number | No. 11832.,11832. |
| Parties | SHERWOOD v. HALPIN-DWYER CONST. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.
"Not to be officially published."
Action by Robert Sherwood against the Halpin-Dwyer Construction Company. Judgment for plaintiff, and defendant appeals. Reversed.
McCune, Harding, Brown & Murphy and Blatchford Downing, all of Kansas City, for appellant. Charles H. Calloway and Calvin & Rea, all of Kansas City, for respondent.
Plaintiff was working in a rock quarry and was injured by a stone falling upon his leg. He brought this suit for damages and recovered judgment in the lower court. The defendant has appealed upon the sole ground that the evidence failed to make out a case of negligence against the defendant. The face of the quarry was about 500 feet long, or, as some of the witnesses put it, "about the length of a city block." The quarrying was being done against the side of a hill or bluff some 40 feet high, and was carried down to a level which may be called the foot of the bluff or the quarry floor. On top was the usual covering of earth, etc., to a depth of 1 or 2 feet. Below this was an inferior quality of limestone called "crusher ledge" which extended downward to a depth of some 18 or 20 feet. Below this was a seam of soapstone, varying in thickness from 6 to 10 inches, which in turn rested upon a ledge of harder solid limestone known as "Bethany Falls" limestone, which went down another 18 or 20 feet to the floor of the quarry. Plaintiff was a quarryman of 25 or 30 years' experience, and the method of quarrying was the one usually adopted. The dirt on top would be first removed. Then holes would be drilled in a row parallel to, and about 8 or 10 feet back from, the edge of the cliff. These holes would be sunk to a depth of 18 feet, and then explosives were placed therein, and that portion of the ledge was blasted off to the floor below, leaving a "bench" in the face of the perpendicular wall or cliff. A second row of holes would then be drilled on this bench down to the quarry floor, and then it would be blasted out from the cliff, leaving a perpendicular wall extending from the floor of the quarry to the top of the hill. This wall is what is called the "face" of the quarry. From what has been said, it will be seen that there were two blasting operations for each section of quarry-face blasted off. But, at the time of the injury, these two blasting operations had been done some days before, so that the entire face of the quarry, from the floor to the top or natural surface, presented a practically perpendicular wall but sloping slightly back toward the hill as the wall rose to the top. Plaintiff, with several other workmen, was at work on the quarry floor, about 15 feet from the face of the cliff, loading into carts the loose earth and rock which had been blasted down, in order that the same might be carried to the crusher. While thus at work, a piece of rock, about 9 inches thick and 2 or 3 feet square, fell from immediately above the soapstone layer, about halfway up the face of the cliff, and crushed plaintiff's leg.
The petition charged that the injuries were directly caused by the negligence of the defendant in carelessly failing to provide and maintain a reasonable safe place to work, in that defendant negligently failed to anticipate that the danger of plaintiff being injured by the falling of rock was likely to occur unless reasonable precautions were taken to prevent it, and in negligently failing to take such reasonable precautions by shoring up the embankment, erecting barriers against the same, grading or sloping off the same, or in removing stone and rock therefrom, which precautions, had they been taken, would have rendered the place reasonably safe.
Clearly, this is a charge of specific negligence in three particulars, namely: (1) In failing to shore up the embankment or to erect barriers against the same. (2) In failing to grade off or slope the embankment. (3) In failing to remove stone and rock therefrom. It may be questionable whether or not this third specification is not, in reality, a part of the second, and means the removal of rock and stone in the grading off or sloping back of the cliff at its edge on top; the evidence being that it was customery to do this to prevent loose fragments attached to the edge from afterwards falling down among the workmen. But in view of the allegations that the defendant negligently failed to provide a safe place to work and negligently failed to anticipate the danger from falling rock, which immediately precede but are directly connected with the specific allegations as to what that negligence consisted of, we think the third specification should be construed to include, not only the rock on the edge at the top, but also any rock likely to fall from any place on the face of the cliff.
As to the first specification of negligence the failure to shore up the embankment, the evidence discloses that, as it was a solid rock wall, no shoring up was necessary. There was no evidence or claim made that "shoring up" in this kind of a quarry was usual or necessary, nor was any showing of negligence made in this regard.
As to the second specification, the failure to grade or slope off the edge of the cliff at the top, the evidence is undisputed that this was done. Besides, it is also unquestioned that the rock which fell did not come from the top, but from the middle of the face of the cliff. So that there was no negligence shown of the kind contained in the second specification.
This leaves only the third specification of negligence, to wit, the failure to remove the stone from the face of the cliff before it fell. Giving plaintiff the benefit of the fullest and best construction capable of being placed upon this allegation, it necessarily means that the defendant negligently failed to inspect the cliff for loose rock, or rock that would be liable to fall, and negligently failed to remove the stone in question from the face of the quarry after the defendant knew, or by the exercise of reasonable care should have known, that it had become loosened or was liable to fall. It is solely upon this ground that plaintiff submitted his case to the jury, thereby recognizing the fact that this was the only ground to which he might lay claim. The question submitted by plaintiff's instruction was whether "defendant, by the exercise, of ordinary care, could have known that said stone, prior to its fall, had become loosened...
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