Watts v. St. Joseph Lead Co.

• Decision Date: 24 June 1922
• Docket Number: No. 17188.,17188.
• Citation: 243 S.W. 439
• Parties: WATTS v. ST. JOSEPH LEAD CO. et al.
• Court: Missouri Court of Appeals

243 S.W. 439

WATTS v. ST. JOSEPH LEAD CO. et al.

No. 17188.

St. Louis Court of Appeals, Missouri.

June 24, 1922.

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by William C. Watts against the St. Joseph Lead Company and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

Politte Elvins and Walter E. Bennick, both of Bonne Terre, for appellant.

Charles M. Hay and Safford & Marsalek, all of St. Louis, for respondent.

BECKER, J.

The St. Joseph Load Company, a corporation, one of the defendants below, brings this appeal from a judgment in favor of plaintiff for $5,000 recovered in an action for damages for personal injuries sustained by plaintiff in the course of his employment in one of the appellant's lead mines in St. Francois county, Mo. John Austin Albaugh, the other defendant, did not appeal.

Plaintiff's petition, after alleging that the defendant lead company was a corporation Engaged in operating a lead mine in St. Francois county, Mo., and that the defendant John Austin Albaugh at all times mentioned in the petition was in the employ of the defendant lead company, authorized and required by them to instruct plaintiff when and how to perform his duties during the time that the plaintiff was in the employ of the said defendant lead company, alleges that—

"On or about the 6th day of April, 1918, defendant St. Joseph Lead Company drilled a hole into rock in said mine, placed explosives therein, attached a fuse and detonating cap thereto, lit said fuse, and then, while said fuse was burning, defendant, knowing that said fuse had been lighted to explode said explosives, without waiting until said explosives exploded, and without waiting such a length of time as would cause a reasonably careful and prudent person, familiar with that same kind of business, to believe that said explosive would not explode, while said fuse was still burning, and before said explosives exploded, and when defendants by the exercise of ordinary care might have known that said explosives had not exploded, negligently instructed and thereby caused plaintiff, then in the employ of defendant St. Joseph Lead Company, and acting within the scope of his employment, to go dangerously near said hole before said explosives exploded; and that after the said fuse in the hole aforesaid had been lighted and while plaintiff was in a place of safety from the discharge of the explosives in said hole, the defendant St. Joseph Lead Company negligently caused explosives in a hole in close proximity to the aforesaid hole to be exploded without any warning to plaintiff or any knowledge on the part of plaintiff that said hole had been charged or was about to explode, and negligently failed to warn or notify plaintiff that explosives in said hole last mentioned were to be exploded, and thus and thereby cause plaintiff to believe that the explosives in the hole first above mentioned had exploded, and, so believing, to go dangerously near the said hole before said explosives had exploded, whereupon said explosives in the hole first aforementioned exploded, and thereby caused the products of said explosion and broken pieces of mineral, rock, and debris, as a direct and proximate result of said negligence, to come in violent contact with plaintiff and thereby injure and damage plaintiff. * * *"

The defendants filed a joint answer consisting of a general denial coupled with a plea that under plaintiff's contract of employment with defendant lead company plaintiff assumed all the ordinary risks incident to said employment, including the risk of the injury alleged in his petition, and a further plea of contributory negligence on the, part of the plaintiff, in that plaintiff in violation of the well-known custom in defendant's mine relating to blasting, failed to keep a sharp watchout for his own safety, in that plaintiff knew that four holes had been drilled and charged with dynamite ready for exploding, and that just before the blasting began the plaintiff was directed by the defendant Albaugh, his straw boss, to stand in a certain safe place near by to count the number of holes that were exploded, so as to determine whether or not all of the charged holes had exploded, and that after the blasting defendant Albaugh returned to the place where he had directed plaintiff to stand and count the shots, and asked plaintiff whether or not all four holes had exploded, and plaintiff said that they had all exploded, when the plaintiff by the exercise of ordinary care should have known that in truth and in fact but three of the said holes had exploded; that the defendant Albaugh, relying upon the assurance thus given him by the plaintiff that all of the holes had exploded returned with plaintiff to the point where one of the charged holes was located, and as the defendant Albaugh approached said spot he saw that one of the charges had not exploded, but that the fuse was still spitting fire, whereupon he called out to the said plaintiff, who was then standing right alongside of him, "Run! the hole has not fired!" and thereupon after such warning, the defendant Albaugh ran to a place of safety, and the plaintiff, instead of heeding the said warning, negligently and carelessly stood by, hesitating, until the charge exploded and injured him in the manner alleged in plaintiff's petition. The reply was conventional.

In the lead mines of the defendant company the ore is disseminated or sprinkled, so to speak, throughout the limestone in the ore-bearing strata, and is excavated by drilling holes into the solid rock and blasting with dynamite. Openings from the drift are made and developed into irregular, cavelike rooms, which are called "stopes." The mines being relatively deep—500 to 600 feet below the surface—it is necessary to leave pillars at frequent intervals to support the great weight of the roof. The strata of ore often occur at different geological horizons, and sometimes an incline or grade is made from an upper to a lower level to permit of more easy access. In the various stopes small tracks or tramways are laid, over which the ore is hauled in small mine cars drawn by mules.

In one of these stopes plaintiff, on April 6, 1918, met with serious injury. About the center of the stope in question a hoist had been installed, and the defendant was preparing to run tracks from this hoist down an incline connecting with another stope on a lower level. It was found necessary to "slab" or blast off a part of one of the pillars (left in the upper stope for supporting the roof) to permit laying a straight track. This pillar we will hereafter refer to as "pillar A."

On the day plaintiff met with his injury two crews were at work in the two connecting stopes above mentioned. Plaintiff worked in one of the crews with a colaborer named Moore, and was under the direction of a "straw boss," named Albaugh. One Reeves was in charge of the other crew. Plaintiff's crew was working on pillar A while Reeves' men were blasting in a heading some 200 feet or more to the east of pillar A. Five shots in all were supposed to be shot off in this particular stope on that day; two charges were to be shot in pillar A by the crew to which the plaintiff belonged. Three other holes were to be shot by Reeves' crew. While plaintiff and his crew were preparing to set off their shots Reeves passed the plaintiff and Moore at pillar A, and stated to them that he expected to fire three holes in his heading.

For the protection of the workers in the vicinity, or who might chance to come there, it was the well-known and long-established custom of the men, when shots were to be fired, to give warning by calling out, "Fire!" According to plaintiff's testimony, plaintiff's party had charged two holes in pillar A, lit the fuses, and called out the customary warning about the same time that the crew under Reeves, who had charged three holes, also gave the usual notice. Plaintiff and his foreman, Albaugh, went down an incline, to a lower level of the mine, while waiting for the blasts to go off. The other members of plaintiff's party went in another direction. Four shots were heard, three in rapid succession, then in a few seconds the fourth, whereupon the men of the other party called out "All over," and went back to their working place. Plaintiff and his fellow workers, knowing that one of their shots had not fired, waited for some time before going back. They relit the fuse attached to the missed hole called "Fire," and again retired to places of safety, the same as on the previous occasion, and awaited the explosion. The point at which plaintiff and Albaugh were waiting was about 300 feet from the pillar they were blasting. They were about the same distance also from the place where the Reeves party was working, but were not between the two.

According to plaintiff's testimony he and Albaugh heard an explosion which "sounded like our hole;" and it sounded to plaintiff as if it came from the general direction of the shot they had relit; it was a loud report and it jarred both Albaugh and plaintiff, and then, according to plaintiff, Albaugh, addressing plaintiff, said, "It went that time, Uncle Bud," and started back. Plaintiff stopped at the foot of the incline, suggesting to Albaugh that they should see if they could find a place to attach an air pipe to be able to do more drilling. Albaugh replied, "No, come on; let's see what it done; maybe we won't have to drill any more." Accordingly plaintiff followed Albaugh toward the pillar where their shot had been placed, and when plaintiff was within about six feet of it the blast went off, injurying him severely. Albaugh disappeared from plaintiff's view immediately before the hole fired.

According to the testimony of Albaugh, it was only after one of the shots in pillar A had already been exploded and plaintiff and Moore had gotten...