Sommer v. Continental Portland Cement Company
| Decision Date | 06 December 1922 |
| Citation | 246 S.W. 212,295 Mo. 519 |
| Parties | JOSEPH SOMMER v. CONTINENTAL PORTLAND CEMENT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.
Reversed and remanded.
Kelley & Starke and Charles E. Morrow for appellant.
(1) Instruction 1, given by the court of its own motion, is erroneous, because it submitted to the jury the question whether the defendant was negligent in dropping the cartridges into the hole instead of lowering them with a cord. This instruction singles out the method of lowering the cartridges into the hole with a cord, and sanctions the same as being reasonably safe, and makes the defendant liable if the lowering of the cartridges into the hole with a cord was more safe than dropping them into the hole, and makes the method of lowering the cartridges into the hole with a cord the standard of care on the part of the defendant. Tabler v. Railroad, 93 Mo. 79; Muirhead v. Railroad, 103 Mo. 251; Glover v. Meinrath, 133 Mo. 292; Stone v. U. P. Railroad, 35 Utah 305. (2) The court erred in permitting the plaintiff to show that the defendant had settled with the witness Robinson, who was injured at the same time plaintiff was injured, and also erred in permitting plaintiff's counsel to argue this fact to the jury. Marshall v. Taylor, 168 Mo.App. 240; Ga. Ry. & Elec. Co. v. Wallace & Co., 122 Ga. 547; Routledge v. Rambler Auto Co., 95 S.W. 749; Vantier v Refining Co., 231 Pa. 8; Rookard v. Ry. Co., 84 S.C. 190; Creighton v. Ry. Co., 68 Neb. 456; Gault v. Railroad, 63 N.H. 356; Comstock v Township of Georgetown, 137 Mich. 541. This evidence being incompetent and absolutely prejudicial, because it was construed by the jury to be an admission of liability on the part of the defendant, the court erred in not discharging the jury at the request of the defendant when the evidence was admitted and when the same was argued by counsel to the jury. (3) The court erred in permitting the plaintiff to show that he was married. Mahaney v. Railroad, 108 Mo. 191; Stephens v. Railroad, 96 Mo. 207; Dayharsh v. Railroad, 103 Mo. 570; Williams v. Railroad, 123 Mo. 573; Hecke v. Dunham, 192 S.W. 120. (4) The court erred in refusing an instruction asked by defendant which told the jury that if defendant purchased the powder in question from a reputable manufacturer and was instructed by it to drop the powder in the hole, defendant was not liable unless before the plaintiff was injured defendant knew, or by the exercise of ordinary care would have known, that such a method was unsafe and dangerous.
Roy Hamlin, Glen Mohler and Leonard, Sibley & McRoberts for respondent; Shepard Barclay of counsel.
(1) It was not error against defendant for the court to submit to the jury only one charge of negligence. Gannon v. Gas. Co., 145 Mo. 512; Meeker v. Elect. Co., 279 Mo. 602; State v. Ellison, 223 S.W. 671. (2) There was no error in permitting defendant's witness, whom defendant had shown was injured in the same explosion as plaintiff, to be asked whether he had "settled" with defendant. Gordon v. Railroad, 222 Mo. 516; Czezewzka v. Railroad, 121 Mo. 213; State v. Harris, 209 Mo. 423; Bradbury v. Smith, 181 S.W. 415; Huss v. Bakery Co., 210 Mo. 44; Koenig v. Union Depot Co., 173 Mo. 698; Campbell v. Railway, 86 Mo.App. 67; Hilburn v. Ins. Co., 140 Mo.App. 355. The point of objection was not properly made. State v. Diemer, 255 Mo. 346; Hafner Co. v. City, 262 Mo. 634. (3) There was no error in permitting plaintiff, in the questions introductory to his statement of his case, to testify that he was a married man. Cooper v. State, 63 Ala. 81; Railway v. Ransom, 63 S.E. 525; Tract. Co. v. Rye, 148 P. 102; Eoff v. Ry., 126 P. 533; Railway v. McClain, 162 P. 752; Hewitt v. Railway, 67 Mich. 80; Cochran v. United States, 157 U.S. 291; Carson v. Smith, 133 Mo. 606. (4) The refused request of defendant for an instruction, in so far as it had any correct direction, was given in other instructions; and it was otherwise without evidence to support its assumptions of fact. Defendant had "knowledge or information concerning the ingredients" of the cartridges and knew of their dangerous composition sufficiently to be charged with the duty of using care commensurate therewith. So the court properly refused to present to the jury an assumption of facts contrary to the evidence, without which evidence the request was not correct. (5) Upon the facts shown by defendant's own evidence it is liable for plaintiff's injury; hence no error of procedure, if any existed, would be material as the judgment was for the right party, as a matter of law. R. S. 1919, secs. 1276, 1513; King v. King, 155 Mo. 406; Lewis v. Curry, 74 Mo. 49; Deal v. Cooper, 94 Mo. 62; Shinn v. Railroad, 248 Mo. 173; Walsh v. Exposition Co., 101 Mo. 543; Railway v. Moore, 228 U.S. 433. The explosion itself, without any exonerating explanation by defendant, is evidence of a defective method of doing this dangerous work, involving the use of high explosives, and such defective method is evidence of liability, proven by defendant's own testimony. Snyder v. Wagner Co., 223 S.W. 911; Neveu v. Sears, 155 Mass. 303; Ash v. Printing Co., 199 S.W. 994; Judson v. Powder Co., 107 Cal. 549.
OPINION
In Banc.
This is a suit for damages for personal injuries resulting from a premature explosion in the quarry of defendant where the plaintiff was employed. Upon a trial before a jury there was a verdict in plaintiff's favor in the sum of twenty-five thousand dollars, from which the defendant has appealed.
In August, 1916, the plaintiff was employed as a common laborer in defendant's rock quarry in St. Louis County. In the performance of his work, the plaintiff was required to use powder and other explosives. Acting under the direction of the defendant's superintendent, the plaintiff was tamping earth and other substances in one of the holes that had been bored for the purpose of blasting. This was one of a number of holes that had been drilled in a ledge of rock by the defendant; it was about seven inches in diameter and eighty or ninety feet in depth, and at the time of the explosion it was partly filled with a compound of a highly explosive character. This material was called Trojan powder, and was in packages eight inches in length and five inches in diameter, each weighing eight or nine pounds. It was the custom to drop seven or eight of these cartridges into a hole and to tamp each one, after it had been lowered, with a piece of wood. This procedure was followed until the hole was loaded. In this instance from fifty-four to sixty-five cartridges had been placed in the hole and had been tamped in by the plaintiff as a part of his duties. Some of these cartridges were dropped into the hole by one of the defendant's foreman, and following the dropping of one into the hole by a fellow-workman, named Alongi, the explosion occurred which resulted in plaintiff's injuries. They consisted in the loss of the sight of both eyes, almost the entire hearing of his right ear, with severe burns about the head and face and such a nervous shock as to render him unconscious for about four weeks. Subsequently thereto he has been unable to perform any labor. At the time he was earning $ 2.20 per day. He testified that he did not know the cause of the explosion and had not been warned of the danger of same. Cross-examined, however, he testified that he knew the material being used in blasting was dangerous and that it would explode.
Witnesses for plaintiff who qualified as experts testified that it was usual and customary in loading holes for shots, to lower the cartridges of powder into same by means of a string, instead of dropping them into the holes or to open the cartridges or packages and pour the contents into the holes.
The defendant's evidence tended to prove that Trojan powder had not been used by the defendant in its business prior to January, 1916; that when this powder was purchased, the manufacturer of same sent to the defendant's plant an expert to instruct the defendant in its use, and this expert advised the defendant that the way to use this powder was to drop the cartridges down into the hole and that it was perfectly safe to so do, and that he demonstrated this to the defendant and actually dropped many cartridges of the powder into the holes of the same depth of the hole here in question, and that defendant thereafter used this powder in the same way up to the time plaintiff was injured, using the same three times for the purpose of blasting down rock in the months of January, June and August, 1916; that this powder would not be caused to explode by a jar, such as dropping it down into a deep hole, but was only subject to be discharged by particular shock from the explosion of a detonating cap or by an electric shock, or by an ordinary black powder fuse which communicated fire to it. The defendant's evidence further showed that it relied upon the representations and followed the instructions of the manufacturer of the powder as to the method and manner of loading the holes in question. The defendant also offered the testimony of four experts that it was usual and customary all over the country to load the shots of Trojan powder into the holes for the purpose of blasting in the manner in which the hole in question was loaded, that is, to drop the cartridges down into the hole, and that this method had been used with safety. Plaintiff was permitted to testify that he was married; and a foreman of the defendant who was injured by the explosion was required to...
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