Traner v. Sphalerite Mining Co.
| Decision Date | 31 May 1912 |
| Citation | 148 S.W. 70 |
| Parties | TRANER v. SPHALERITE MINING CO., Inc. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Lawrence County; F. C. Johnson, Judge.
Action by Lee Traner against the Sphalerite Mining Company. From a judgment for defendant, plaintiff appeals. Affirmed.
The following authorities were cited for respondent: Thornberry v. Mining Co., 126 Mo. App. 660, 105 S. W. 659; Whaley v. Coleman, 113 Mo. App. 594, 88 S. W. 119; Caudle v. Kirkbride, 117 Mo. App. 417, 93 S. W. 868; Morgan v. Temagami Mining Co., 136 Mo. App. 241, 117 S. W. 90; Beebe v. Transit Co., 206 Mo. 419, 103 S. W. 1019, 12 L. R. A. (N. S.) 760; Hill v. Drug Co., 140 Mo. 440, 41 S. W. 909; Smith v. Box Co., 193 Mo. 716-739, 92 S. W. 394; Knorpp v. Wagner, 195 Mo. 638, 663, 668, 93 S. W. 961; Livengood v. Lead & Zinc Co., 179 Mo. 229, 77 S. W. 1077; Marshall v. Hay Press Co., 69 Mo. App. 256; Wray v. Electric Light and Power Co., 68 Mo. App. 380; Minnier v. Railroad Co., 167 Mo. 100, 66 S. W. 1072; Berning v. Medart, 56 Mo. App. 445; Pulley v. Standard Oil Co., 136 Mo. App. 172, 116 S. W. 430; Meily v. Railroad Co., 215 Mo. 590, 114 S. W. 611; Spencer v. Bruner, 126 Mo. App. 94, 103 S. W. 578; Brands v. Car Co., 213 Mo. 698, 112 S. W. 511, 18 L. R. A. (N. S.) 701; Combs v. Construction Co., 205 Mo. 367, 104 S. W. 77; Line v. Mason, 67 Mo. App. 279; Obermeyer v. Mfg. Co., 120 Mo. App. 59, 96 S. W. 673; Czezeswska v. Ry. Co., 121 Mo. 201, 25 S. W. 911; Monahan v. Kansas City, 58 Mo. App. 68; Goins v. Ry. Co., 47 Mo. App. 173; Boettger v. Scherpe Co., 124 Mo. 87, 27 S. W. 466; Benjamin v. Ry. Co., 50 Mo. App. 602; Johnson v. Ry. Co., 96 Mo. 340, 9 S. W. 790, 9 Am. St. Rep. 351; South St. Louis Ry. Co. v. Plate, 92 Mo. 614, 5 S. W. 199; State v. McLaughlin, 149 Mo. 19-28, 50 S. W. 315; Carpenter v. Wilmot, 24 Mo. App. 592; Nelson Distilling Co. v. Hubbard, 53 Mo. App. 23; Bethany Savings Bank v. Cushman, 66 Mo. App. 102. Wilson v. Gibson, 63 Mo. App. 656; Robinson v. Siple, 129 Mo. 208, 31 S. W. 788; Lewis v. Humphries, 64 Mo. App. 466.
McPherson & Hilpert and McNatt & McNatt, for appellant. Edward J. White and James A. Potter, for respondent.
This is a suit for damages for personal injuries. On August 12, 1907, plaintiff, a drillman employed in defendant's zinc mine near Aurora, was hurt by a premature explosion under ground on a 70-foot level while loading a drill hole with a shot. Presently he sued in the Lawrence circuit court, counting on negligence. The jury finding against him and judgment following, he appeals.
Contentions made here in briefs search the pleadings and facts.
The pleadings. Charging he was a drillman running a drilling machine in defendant's mine and loading and firing shots in drill holes, plaintiff complains in his petition for that (as defendant's servant) he had been for a long time loading drill holes with giant powder of 40 per cent. nitroglycerine; that defendant negligently and without notice to him changed the powder to a brand of 50 per cent. nitroglycerine; that the 50 per cent. sort was more sensitive to explosion, and more powerful than the 40 per cent. kind, requiring more care in manipulation (all of which defendant well knew or might have known with due care); that a stick of 50 per cent. powder was negligently furnished to him by some of defendant's other servants, which stick had been negligently prepared, in that its paper wrapping was broken and torn, and the hole for the fulminating cap was negligently made too big, so that the cap attached to the fuse was liable to fall out, come in contact with the walls of the drill hole, and explode the powder prematurely while loading the hole for firing; that an explosion and his injury happened while plaintiff, in the line of duty and exercising due care, was loading a drill hole with said stick; and that such explosion and his resulting injuries were caused by said negligent change in powder, negligent failure to notify plaintiff of the change, and the negligent way said stick was prepared for use as aforesaid. The answer was a general denial, a plea of contributory negligence, that the accident was a casualty not to be anticipated, and was one of the risks plaintiff assumed when employed as a miner. There is a further averment that the statute making employers of miners responsible to one servant for the negligence of his fellow is unconstitutional, but that feature of the answer is abandoned. The reply was conventional.
The facts. Summarized, the facts follow.
Plaintiff's arm was crushed by a premature explosion of a shot on August 12, 1907. The broken bones did not knit kindly when set, and at the time of the trial in March, 1908, the arm was in a bad way. The extent of his injuries not being material to any present issue, the testimony in that regard may be omitted.
It is agreed on all sides that plaintiff was a miner of experience, commencing years before as a shoveler, then becoming a pick hand and a helper at a drill, and finally a drillman or cutter; that he knew the brands of powder used in mines, the dangers incident to using high explosives, and was an expert in their use. As drillman he ran a drilling machine, drilled holes for blasting in mines, loaded and shot his drill holes, having a helper under him to fetch, carry, and help generally. While plaintiff was under a foreman, yet the details of drilling, loading, firing, inspecting his drill holes and the roof after firing were intrusted to him as part of his duties. Off and on he had worked for defendant since November, 1904 —the last time for a few weeks. Powder is furnished to drillmen in a round form, like exaggerated firecrackers, called "sticks." Each stick is say eight inches long and one inch in diameter. These sticks are stoutly wrapped with paper. A stick equipped with a fulminating cap attached to a fuse is called a "shot." In loading a drill hole for blasting in a mine, sticks of powder are put to the bottom of the hole, one on top of the other, and the last stick to go in is the shot. These sticks are put in one at a time by a tamping bar. The bar in this instance, was a gas pipe with a wooden plug in one end (the tamping end) 10 or 12 inches long. As we gather, in the end of this plug is a projecting nail. The miner pushes this nail in the stick of powder, and lowers it into the hole by the tamping bar. On this occasion plaintiff acting as his own boss had drilled a group of holes, and was loading one of them for firing. He had put three sticks in place in the bottom of one of said drill holes eight feet deep and two inches in diameter, and was putting the fourth, the shot, in place when the whole charge exploded. A shot is made by punching sideways a hole in a stick of a dimension suitable to hold a fulminating cap in position when inserted; the idea being to carry the loose end of the fuse up and out for firing, and thereby explode the cap and charge. In this instance, when about to load the drill hole with the shot, plaintiff found the cap lying near by and out of the cap hole. Looking into the matter, he saw the hole was too big to hold the cap in place. Knowing this, he put the cap back in the cap hole, and in handling the shot the cap fell out again. Once more he put it back, and it again came out presently as he was putting the shot in the drill hole. He also noticed that the paper wrapping of the stick was torn at the cap hole. He had no knife to make a new cap hole, and, as he had used a shot of that kind three or four times before in his years of mining experience, he says he thought he could safely do it again. Accordingly, putting the cap back into the cap hole, he pushed the shot four or five feet down the drill hole with his tamping bar. At that point, while engaged in ramming it home, the powder was touched off in some mysterious way. He did not know the cause of the explosion. Sticks of powder, including the shot, were furnished him shortly before the accident by defendant's foreman, who sent them from the top of the ground to the working level.
On defendant's part there was uncontradicted testimony on the cap hole and torn wrapper to the effect that one certain punch was used in making holes for all caps, and that, if the hole in this particular shot was too big to retain the cap or the wrapper was torn, the foreman who personally made the shot was not aware of it. The tear in the paper was not accounted for unless the speculation is indulged that it came from punching the cap hole. There was also unquestioned proof that if the cap hole was too big to retain the cap, or if the paper was torn so that powder would leak out, then either increased the danger. This because...
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