The Coffeyville Vitrified Brick and Tile Company v. Shanks

• Decision Date: 07 May 1904
• Docket Number: 13,610
• Citation: 69 Kan. 306,76 P. 856
• Parties: THE COFFEYVILLE VITRIFIED BRICK AND TILE COMPANY v. S. H. SHANKS
• Court: Kansas Supreme Court

76 P. 856

69 Kan. 306

THE COFFEYVILLE VITRIFIED BRICK AND TILE COMPANY v. S. H. SHANKS

No. 13,610

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Neosho district court; L. STILLWELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINES AND MINING -- Operation of Shale-pit -- Duty of Master to Warn Servant. It is a master's duty to conduct the business of mining shale in a manner affording reasonable safety to his employees; and if the operation of a shale-pit from thirty to thirty-five feet deep, with steep walls, require that massive fragments of shale, loosened by blasting, be thrown down at irregular intervals from the top of the pit upon the place at the foot of the wall, where men are required to work, whose duties prevent them from properly protecting themselves against injury from the falling shale it is the master's duty to make efficient and permanent provision for warning signals to be given upon such occasions in time for the men to retire beyond the reach of harm.

2. MINES AND MINING -- Servant May Rely on Warnings of Pit-boss. Under a rule governing the operation of a shale-pit, that men at the foot of the pit wall shall shovel shale into cars while the pit-boss watches that drillers at work at the top of the pit do not throw fragments of loosened shale down upon them without previous warning, a man shoveling shale is not obliged to observe the progress of the drillers' work, but may rely upon the warnings the pit-boss is required to give.

3. MINES AND MINING -- Fellow Servants -- Master Must Give Warning of Danger. In determining the question whether or not two employees are fellow servants, the fact that the negligent act of one of them, which injures the other, violates a duty which the master himself owes is controlling, irrespective of the rank or grade of service between the employees, and notwithstanding the circumstance that they are engaged in a common employment directed to a common end; and if, in the discharge of the master's duty, a warning be necessary, it is not enough that he has provided a competent person to give it; the warning must be given.

4. PRACTICE, DISTRICT COURT -- Exceptions to Special Questions to Jury. A general exception to a refusal to submit to the jury a number of special interrogatories is insufficient if any one of them be improper.

J. B. & W. E. Ziegler, for plaintiff in error; H. P. Farrelly, of counsel.

W. R. Cline, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

At the time of the occurrence furnishing the foundation for this litigation the defendant was engaged in manufacturing brick out of shale quarried from a pit. The shale-pit was then from 175 to 200 feet long, from 80 to 100 feet wide, and from 30 to 35 feet deep, with steep walls. Men designated as "drillers" worked about the top of the pit, loosening the shale by blasting. Fragments of shale loosened in this manner were pushed by the drillers away from the walls, when they tumbled to the bottom of the pit by virtue of their own gravity. There they were broken up and shoveled into small cars by men described as "shovelers." The loaded cars were drawn out of the pit by mechanical means. All operations connected with the working of the shale-pit were superintended by an agent of the company known to the men as the "pit-boss." He had authority to employ and discharge pit workmen, directed them where and how to work, and when to perform different kinds of work, fixed the location of the car-tracks in the pit, and in all respects exercised the company's authority over the pit and the men at work there.

It was safe for the shovelers to work at the foot of the pit wall unless the drillers should push shale down upon them unawares. It was unavoidable that shale should be thrown down at irregular intervals. If the shovelers were allowed to consume their time in scanning the top of the pit in an effort to protect themselves, they might not be successful in doing so, and their labor could not be profitable to the company. Therefore, the pit-boss took upon himself the entire responsibility of protecting the shovelers by watching the progress of the drillers' work, and giving warning, whenever shale was to be thrown down, in time for the shovelers to retire beyond the reach of harm. The foreman assured the shovelers he would always do this, and instructed them to give all their attention to their work. This regulation was rigorously enforced, and any shoveler looking up to see if danger threatened was likely to be arrested with the command of the pit-boss: "Go ahead and shovel the shale, and I will watch that."

The plaintiff was an experienced shoveler, who was familiar with all the operations and dangers of the pit, who had received the foreman's promise of protection from danger, and who relied upon him for such protection. On the afternoon of March 7, 1902, a large block of shale, estimated to weigh 1500 pounds, was pushed down by the drillers without any warning from the pit-boss. After the descent had begun the drillers themselves called out to the men in the pit below, but it was then too late. The mass of rock overtook the plaintiff before he could escape, and crushed the lower part of his left limb. He knew the drillers were at work above him, and could have seen what they were doing by neglecting his own duty, but not otherwise. This he did not do. Instead, he faithfully followed his instructions, remained ignorant of his peril, and suffered the grievous consequence. From a judgment entered upon the verdict of a jury in favor of the plaintiff the defendant prosecutes error.

The company claims that the shoveler assumed the risk of injury from the source from which it came to him, and all the arguments which are usually elaborated from "open and obvious danger," "equal facility and opportunity to see and know," "shutting the eyes to the patent and palpable," and kindred material, are rehearsed. They have no place here. There is no room for any implied agreement of the employee to assume the risk of danger in the presence of an express regulation upon the subject established by the pit-boss for the very purpose of protecting him. The pit-boss undertook to perform the function of the vigilant eye and ear and the cautious judgment for his men, in consideration of which they surrendered the use of their own faculties and yielded the right of relying upon their own capabilities for protection. The risk of danger from the spontaneous caving of banks, from the falling of blocks of shale loosened by natural agencies and from other similar causes, was doubtless assumed. Such perils inhered in the work and could be foreseen by the men as well as by the master. But the conduct of the work of drilling and casting down shale was properly subject to regulation, and under the rule of the pit that he should work while the foreman watched, the plaintiff was not bound to observe anything...