179 Mo. 229 | Mo. | 1904
Lead Opinion
In Banc.
— -The following opinion heretofore rendered in Division One is hereby adopted as the opinion of the Court in Banc.
— This is an action for thirty thousand dollars damages for personal injuries received by the plaintiff by an explosion in defendant’s mine near Carterville, on May 21, 1900. The plaintiff recovered a judgment for ten thousand dollars, and the defendant appealed.
The negligence charged in the petition is that the defendant failed to furnish the plaintiff a reasonably safe place to work, and to take necessary precautions to render plaintiff’s service reasonably safe, and to inform the plaintiff of any and all hidden danger, and that disregarding its duty in this regard, it “negligently directed the plaintiff and his co-workmen engaged in operating said steam drill, to drill three holes in the face of a drift in defendant’s said mine, in the face of which, drill holes had been previously made by other servants and employees of the defendant and charged and loaded with dynamite and other explosive substances, for the purpose of breaking and loosening the ground in said drift, and which said shots so loaded had been previously, by other servants of defendant, attempted to be shot off and exploded, but that in fact one of said shots so previously charged in said drift had not been fired and had failed to explode, of which fact the plaintiff was ignorant at the time he went to work in said drift making said drill holes as aforesaid; and that the defendant had failed and neglected to inform plaintiff, that one of said shots so previously made had not been exploded and remained in the face of said drift; that it was the duty of the defendant, after attempting to fire said previous shots, to inspect said drift, to ascertain whether or not all of said shots so previously loaded had been shot off and discharged, and to advise plaintiff and his co-workmen of the fact, before putting them to operate said steam drill in the face of said drift, but that the de
The answer is a general denial, a plea of contributory negligence and of assumption of risk.
To maintain the issues on his behalf, the plaintiff was called as a witness in his own behalf, and testified
The defendant asked him if he had not heard of a great many explosions caused by drilling into unexploded shots; the plaintiff objected to the question, the court sustained the objection and refused to allow the -defendant to show that the plaintiff had so heard before he went to work in this mine.
The plaintiff then called a doctor, who testified to the character of the plaintiff’s injuries, and then the
To sustain the issues on its part, the defendant, called John Dixon, the foreman of the mine, who testified that he had been engaged in mining for about, twenty-four years, and had had seventeen years’ experience in drilling; that this mine had been in constant, operation for about three months before the accident; that when the plaintiff applied to him for work, he asked. him if he was acquainted with machine work, and he said, he was not a professional machine man, but he had. helped a little in New Mexico; that he employed him as. a helper to Wilkie; that it is the duty of the drillman after shots have been fired, to examine and find out. whether or not all the shots have been exploded, before-drilling any more holes; that he is furnished with a ‘ ‘ spoon ’ ’ and hose with air in it to clear the ‘ ‘ face, ’ ’ so> he can see clearly whether there is any powder or an unexploded shot in a drill hole; that when shots have been fired, it is the duty of the machine man to make-such examination the first thing the next morning before-doing any other work, and if he finds that any shots have-not exploded, to report that fact to the foreman, and to-go to work somewhere else in the same or, if necessary,, another drift; that it is not the duty of the foreman to-make such examinations; that it is the duty of the helper to assist the machine man in his work; that he did not tell the plaintiff that shots had been fired on Saturday night; that he did not know that anv of the shots had not exploded.
The defendant also called six other expert, practical and experienced miners, foremen, etc., who testified that it is the duty of the machine man to examine and see whether any shot has not been exploded, before doing any more drilling, and that it is the duty of the helper to assist the machine man in making such examination,
At the close of the whole case, the defendant again demurred to the evidence; the court overruled the demurrer, and the defendant excepted.
The court submitted the case to the jury upon the plaintiff’s instructions which declared the law to be that after the explosion on Saturday night, it was the duty of the defendant to ascertain whether or not all the shots had exploded, before sending the plaintiff into the drift as helper to the drillman, and if the company did not do so or did not inform the plaintiff that shots had previously been put in and caution him to examine and ascertain whether they had all exploded, the defendant was guilty of negligence and the verdict should be for the plaintiff.
The court refused to instruct the jury, as asked by the defendant, that if they found that Wilkie and the plaintiff were fellow-servants and if it was Wilkie’s duty to examine and see whether all the shots had been exploded before proceeding to drill further, and if the explosion was caused by Wilkie’s negligence, the plaintiff could not recover. Also refused to instruct the jury that the plaintiff by entering the service assumed the ■ordinary risks incident to running the drill, among which was the risk of drilling into unexploded shots and causing an explosion. Also refused to instruct that Wilkie and the plaintiff were fellow-servants, and that the plaintiff could not recover if the accident was caused by Wilkie’s failure to discharge his duty and examine and ascertain whether all the shots were exploded before proceeding with the work of drilling.
I.
There is no room for doubt that the plaintiff and the drillman, Wilkie, were fellow-servants. In fact, the petition so treats them, for it speaks of “the plaintiff
If they were fellow-servants, and if the injuries were caused by the negligence of Wilkie, the plaintiff is not entitled to recover. This is axiomatic in the law, and is not controverted by the plaintiff.
The plaintiff’s theory, which was adopted by the circuit court, however, is that it was the master’s duty to furnish the plaintiff a reasonably safe place to work, and that this duty is personal, and that the defendant in this case, instead of discharging this duty in person by examining and ascertaining whether or not all the shots had been exploded on Saturday night, unlawfully employed Wilkie to discharge this part of its personal duty? and, hence, the defendant, is liable without regard to whether Wilkie was a fellow-servant or not, and without regard to whether he was negligent or not.
The first postulate is correct. It is the duty of the master to furnish the servant with a reasonably safe place to work, but this is subject to the qualification that regard must be had to the character of the work the master is engaged in, and which the servant is employed to do, for some work, like mining and the use of dynamite, is necessarily dangerous, depending somewhat, but. not entirely, upon the care that is taken by the servants, as well as by the master, in the doing of the work and in the handling of the dangerous explosives. [Grattis v. Railroad, 153 Mo. 380; Minnier v. Railroad, 167 Mo. 99.]
But the plaintiff is not correct in his application of this principle of law to the facts in this case. The defendant did furnish the plaintiff a reasonably safe place in which to work, and did furnish reasonably safe tools and appliances with which to do the work, regard being had to the character of the work to be done.
The business was necessarily attended with some risk and danger, but it could be done in a comparatively safe manner, or it could be done in a negligent manner.
The petition charges that it was the duty of the master to examine,'after each shot, to see whether all the shots had exploded, and the plaintiff’s instructions proceed on the same theory, and counsel for plaintiff in their brief contend that the defendant, instead of discharging this duty in person, hired Wilkie to do it, and that this was beyond the power of the defendant, and, hence, the defendant was negligent and is liable. The petition also charges that the previous shots, on Saturday, had been fired by “other servants” of the defendant, but this is not shown to be the fact. On the contrary, those shots were fired by' Wilkie.
There is no conflict in the testimony that it was a part of the duty of the drillman, Wilkie, to examine and ascertain after every shot whether all the shots had exploded, and it was a part of the duty of the helper, the plaintiff, to assist the drillman in this work, and if it was discovered that any shot had not exploded, it was the duty of the drillman and his helper to go to work somewhere else in the same or, if necessary, in another drift. The testimony is uncontradicted that this is the usual and customary way of doing such business, and that the duty of inspecting for unexploded shots is usually east upon the drillman and his helper, and not upon the foreman or master.
Unless, therefore, it be the law that such duty of inspection is a personal duty of the master which he can .not delegate to or cast upon any one else, the defendant can not be adjudged guilty of negligence in this case.
The duties of a drillman and his helper are necessarily more or less dangerous, but they are simple, and require no great amount of skill or training. Any man of ordinary intelligence can perform them. They con
It can not, therefore, be said as a matter of law that the master was negligent in not performing the duty of inspection personally, nor that he was not entitled to have the duty performed by the servant. It was a natural and almost inseparable part of the very work the servant was employed to do. In the very nature of the business, it would be practically impossible for the master, who was largely engaged in mining, to visit •every drift after every shot to see if every charge had been exploded.
The fundamental idea upon which the case was predicated and submitted to the jury was therefore erroneous.
The contention of the plaintiff that the master was negligent in not informing the plaintiff that there had been shots fired on Saturday and in not warning the plaintiff to examine and look out for unexploded charges, is also untenable. The plaintiff applied for work; represented that he had been engaged in mining
This case is also wholly unlike Fisher v. Central Lead Co., 156 Mo. 479, and Hamman v. Central Coal & Coke Co., 156 Mo. 232, where, the master failed to furnish the servant a safe place in which to work, in that, he failéd to provide suitable props for the roof of the mine, or to make provision to protect the servant against rocks falling from the roof of the mine, while the servant was at work in a drift, and where it was no part of the duty of the servant to make such provision against such injuries.
Here it was the duty of the drillman and of the plaintiff to examine and see whether any charge remained unexploded. They failed to do so, but proceeded with the work and the injury ensued. The drill-man was negligent and the plaintiff was negligent. The injury was caused by a risk incident to and ordinarily connected with the doing of the work the plaintiff engaged upon. The negligent manner in which the plaintiff and his fellow-servant, Wilkie, did the work, caused the injury. The work of the master was dangerous, but it was not illegal. The master had a right to con
The injuries to the plaintiff are the most distressing and serious of any that have, ever been present in any case that has been called to the attention of this court, and the record has been scrutinized with the hope that some legal ground could be found which would warrant an affirmance of the judgment, but while the sympathies of this court are with the plaintiff, the law is so plainly against him that the court is reluctantly forced to reverse the judgment of the trial court.
Dissenting Opinion
DISSENTING OPINION.
— The opinion of the court in this case is based on the assumption that Wilkie, whom the defendant’s testimony tends to show was entrusted with the performance of the master’s duty in respect of examining for unexploded shots, was the fellow-servant of the plaintiff.
In my judgment that is an erroneous assumption and for that reason I dissent from the opinion based on it.
The master owes the duty to his servant to furnish him reasonably safe implements with which to work and a reasonably safe field of operation. This duty the master can not shirk by casting it on a servant.' It is not necessary that the duty be performed by the master in person, he may cast it on a servant to perform, but when he does so he is not rid of it. The act of the servant in performing or neglecting to perform that duty is the
The ordinary employment of a servant is to do the ■work of his master in respect of the business in which he is engaged; in this case it was to get out the ore for market. That is what the plaintiff was employed to do, and -according to his testimony it was the only thing, he was employed to do. That is, also, according to the testimony of both plaintiff and defendant, what "Wilkie was employed to do. But in addition' to that work, according to defendant’s testimony Wilkie was also charged with the duty of looking out for the unexploded shots. If Wilkie had that duty, then he was employed in a dual capacity; in one he was a servant doing the ordinary work for which the business was being conducted; in the other, he was in the master’s shoes looking after the safety of his servants. In the one capacity he might be the fellow-servant of the other servants doing the ordinary work of the mine, but in the other capacity not so; if he was guilty of negligence, in the one capacity it might in a given case be adjudged the negligence of a fellow-servant, whilst his negligence in the other capacity would be the negligence of the master. The master can no more avoid his duty by selecting one to perform it who is also engaged in the ordinary work and who in that' respect is a fellow-servant of others engaged in the same work, than he can by selecting a man to do that duty and nothing else.
The master may entrust the performance of his duty to look after the safety of his servants to one or many, and if too many, then they, in the performance of that duty, might become as to one another fellow-servants. But because men are fellow-servants when working in one capacity, that does not make them fellow-servants with reference to their work in another capacity.
In considering this subject we should keep in mind
In this case, according to the plaintiff’s testimony,the only work he was employed to perform was that of helping Wilkie run the drilling machine to get out the ore; he was employed to do the work of a common laborer in that capacity; he was not in any sense the master’s alter ego. The'story he told the superintendent when he applied for employment showed that he was a boy of very little experience, certainly not enough to be entrusted to look after the safety of himself and others working with him in the dangerous occupation. In his employment there was nothing said to him to indicate that he was to be the master’s vice-principal. Unless'he was the master’s vice-principal in this respect, and unless Wilkie was also the master’s vice-principal in the same' respect, they were not fellow-servants.
There was testimony on the part of defendant which was at least intended to show that this boy was employed to look after these unexploded shots, and to assist in the performance of the duty which the master in that respect owed to him and the other servants. But that was contrary to the plaintiff’s testimony and it raised .a question for the jury. This court has no right to pass on that question of fact; it was passed on by the jury and that should be the end of it.
In my opinion the judgment should be affirmed.