Zeigenmeyer v. Goetz Lime & Cement Company
| Decision Date | 19 June 1905 |
| Parties | ZEIGENMEYER, Admr. of the estate of MITCHELL, Respondent, v. GOETZ LIME & CEMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Franklin Circuit Court.--Hon. Wm. A. Davidson, Judge.
This is an action for personal injuries, a stone from a blast having fallen upon plaintiff's head, whereby his skull was crushed. The plaintiff was in the employ of the defendant as a laborer at its quarry. The defendant, a corporation, owns and maintains a stone quarry in Franklin county. The plaintiff's testimony shows the following facts, which are not controverted by the defendant.
Plaintiff resided one and one-fourth miles from the quarry and in the year 1893 or 1894 had worked in the quarry and was familiar with the work and its risks. In the latter part of March 1902, he again employed himself to defendant as a laborer. His business was that of teamster, hauling wood to the furnaces of the kilns and hauling stone into the kiln. The site of the quarry is well elevated on a high bluff on the south side of the Missouri river. The Frisco Railway runs along at the foot of the bluff and between the plant and the river. Defendant's kiln was built between the railway track and the bluff. A bridge about fourteen feet wide was built over the roof of the kiln and connected with the bluff. A very large smokestack from the kiln, as much as ten feet in diameter, protruded above this bridge. It was the duty of the plaintiff to load his cart with stone in the quarry and drive therewith down the hill onto the bridge immediately over the kiln and dump or unload the stone into this huge smokestack through two large doors provided in the side of this smokestack. The stone would thus fall into the kiln. The stone in the quarry was raised by blasts with large quantities of explosives as is usual in quarries. There were two kinds of blasts known to plaintiff and others who worked there; quib shots, which were small blasts, and the block shots, which were very large and heavy blasts, in which were used from ten to fifteen 25-pound cans of powder each. The duties of plaintiff brought him constantly in and out of the quarry where he loaded his cart with the stone and he always knew about the blasts; when a blast was being prepared and about when it would be discharged. After a blast was prepared, but before it was discharged, defendant had someone of its employees, with a loud voice, go out of the quarry and give several whoops at intervals, which was a warning signal to the employees that a blast was about to be fired. It was the duty then of all the men to seek shelter from the flying stones. The protection for those who worked in the quarry was usually a shelter in the bluff, which existed by virtue of an overhanging rock. It would accommodate fifty men and there were not one-half that number to use it. It was perfectly safe, at least no flying stone from blasts had ever gotten in there. Plaintiff usually unloaded his cart on the bridge at the smokestack and then crawled under the cart for protection. At other times, he stepped inside of the smokestack for shelter from the falling stones which resulted from the blasts. On the day of the injury, July 18, 1902 after plaintiff had been in this second employment for more than three months, a block shot of fourteen cans of powder was about to be fired. One Sheldon gave the usual warning. Plaintiff knew of the preparation for the shot, heard and understood, and acted upon the warning by stepping inside of the smokestack, the topmost joint of which tapered from its ten foot base, leaving a reasonable outlet for the smoke when the kiln was in blast. This topmost tapering joint constituted a kind of roof over the very large lower portion of the smokestack. The topmost portion of the smokestack, the roof portion thereof, was of sheet-iron and not of very strong material, and on the side next to the quarry a portion thereof had broken loose from the rivets, thus leaving a hole through which falling stone could pass. Of this, plaintiff admitted having full knowledge, having seen it before. Upon the firing of the blast or shot in question, a stone fell through this hole in the chimney portion or top of the smokestack, striking plaintiff on the head, thereby crushing his skull into his brain, inflicting a severe, permanent and painful injury. Plaintiff, in his testimony, stated he might have gone into the bluff and have been safe, where the men from the quarry were, but it was three hundred or four hundred yards out of his way to have done so, or he might have driven his cart and horse to the barn by opening gates and going to some trouble and have been safe there, but he had always sheltered on the bridge, either under the cart or in the smokestack. Plaintiff was wholly familiar with the work. He testified that he had worked at everything about the quarry except drilling, also that there were often rocks thrown from the quarry onto the bridge where he took shelter but not very large ones. He further testified as follows:
He further testified that neither the foreman nor anyone representing the company had ever ordered him or suggested to him that he take refuge on or about the bridge but that such had always been his custom and the foreman knew it. All of the evidence goes to show that plaintiff or none of the employees was required or expected to proceed with their work while blasts were being fired or stones falling therefrom and that the warning was given for no other purpose than to cause them to suspend operations and seek shelter during that time.
The petition was in two counts. The first count pleaded the principal facts as hereinabove set out and predicated a right of recovery upon the alleged negligence of defendant in failing to provide plaintiff with a safe place to work. The second count stated the same facts and predicated the right of recovery upon the alleged negligence of defendant in loading and exploding an extraordinary blast. On the trial the evidence showed that the blast was not extraordinary. The verdict on the second count therefore, was for the defendant and on the first count the jury returned a verdict for plaintiff in the sum of $ 1,800. Defendant appeals to this court and insists that the court erred in submitting the case to the jury for the reason that the plaintiff assumed the risk and that, having chosen his own place of refuge, his going into the smokestack with a hole therein immediately over his head through which falling rocks might pass and inflict an injury, as was done, would preclude a recovery upon the ground of contributory negligence. After judgment, plaintiff departed this life. The case now stands revived in the name of his administrator.
There are several errors in the instructions given and refused. It will be unnecessary for us to notice but one as the view we take of this case will preclude any recovery.
Judgment reversed.
McKeighan & Watts, Edwin W. Lee, and Wm. R. Gentry for appellant.
The plaintiff assumed the risks that were incident to his employment in the usual operation of the business He was injured by one of those risks. It was as obvious to any man as it was to the foreman. The demurrer should have been sustained on that ground. Fugler v. Bothe, 117 Mo. 475, 22 S.W. 1113; Aldridge v. Furnace Co., 78 Mo. 559; Steinhauser v. Spraul, 127 Mo. 541, 28 S.W. 620, 30 S.W. 102; Junior v. Light & Power Co., 127 Mo. 79, 29 S.W. 998; Epperson v. Cable Co., 155 Mo. 346, 50 S.W. 795, 55 S.W. 1050; Bunt v. Mining Co., 138 U.S. 485; Bradley v. Railway, 138 Mo. 293, 39 S.W. 763; Sullivan v. Mfg. Co., 113 Mass. 396.
Jas. Booth and John W. Booth for respondent.
NORTONI, J. (after stating the facts).
The finding of the jury for the appellant on the second count of the petition as above stated, eliminated from the case the charge of negligence in exploiting an extraordinary blast, and the finding for the respondent upon the first count of the petition affirmed that appellant was negligent in failing to provide respondent with a reasonably safe place in which to carry on his work, so that, as the case stands before us, the recovery is predicated upon the failure to furnish a safe place to work. The question of safe place is the only question with which we are called upon to deal. The question presented for our decision is, granting all the facts to be true as stated, does the law require appellant to furnish a place at all times reasonably safe to its servants who are conducting business for it, the very nature of which business renders the place temporarily unsafe at times?
The law does not require the master to furnish an absolutely safe place in every instance for the servant to work for the reason that the law recognizes that such requirement would be unreasonable on its part and impossible of fulfilment on the employer's part, in view of the fact that there are many undertakings and employments which are dangerous within themselves and about the conduct of which no absolutely...
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