130 Mo. App. 412 | Mo. Ct. App. | 1908
Plaintiff sues for damages for the death of her husband which she alleges was caused by the negligence of defendants, mining partners. The principal questions urged on our attention by defendants, who brought the cause here by appeal, arise from the contention that at the close of the evidence, the jury should have been directed by the court to return a verdict in their favor.
The facts presented by the evidence introduced by plaintiff are as follows: Monday morning, August 20, 1906, plaintiff’s husband, Jesse Seals and her brother, Shed Shuey, were employed by defendants to work as miners in sinking a prospect shaft in mining land owned by defendants in Newton county. Seals was twenty years old, Shuey twenty-eight. Both were practical miners and neither had worked in that shaft before. The shaft was sixty-eight feet deep • and had penetrated into hard rock which, to be properly loosened, required explosions of heavy charges of dynamite. The last work done on the preceding Saturday was the firing of a shot of such character in' the bottom of the shaft. Between that event and the .time when Seals and Shuey were ordered, by defendant, Whitney, the superintendent of the mine, to go down in the shaft, no effort was made to remove the noxious gases liberated
It is conceded that Seals and Shuey were overcome by inhaling poisonous gas which both parties appear to think was generated by the explosion and, therefore, was not what the miners ordinarily call “bad air” (carbonic acid gas). The witnesses say that where the latter gas is present in sufficient quantity to destroy human life, it will extinguish combustion immediately, and the fact that the matches and lamp would burn is •convincing that the gas the men inhaled was the product of powder, since such gas may exist in deadly quantity and still the air with which it is mixed will support combustion. Unlike carbonic acid gas, its presence •ordinarily will be disclosed by its odor arid the effect on a person inhaling it. That it was not detected by Seals and Shuey in the present instance in time for them to escape from the shaft probably was due to the fact that when Shuey first began to work, the air surrounding him was not impregnated with a dangerous quantity, and it was not until he and Seals had removed the water and begun to stir the loosened rock and dirt that enough gas was mingled with the air to be dangerous to life. Owing to the great force exerted downward from an explosion of dynamite, the witnesses say that the usual result of such explosion is strongly to permeate the loosened substance with the gas engendered and that such gas will be held imprisoned until released by disturbance of the material in which it
The specific acts of negligence pleaded and submitted to the jury in the instructions given at the instance of plaintiff, thus may be stated: First, the failure to use the ventilator immediately after the shot was fired; second, the failure to have it in operation immediately before and during the time the men were at work; third, the omission to warn the men of the likelihood of gas being present in sufficient quantity to endanger their safety.
The argument of defendants on the demurrer to the evidence contains two main propositions: (1) That no negligence of defendants is shown by the facts stated to be the proximate cause of the death of plaintiff’s husband. (2) That his own negligence in liberating the destructive gas by stirring up the dirt and rock where it was imprisoned and in not leaving the shaft immediately on discovering its presence was the proximate, or at least, a contributing cause of his death. The first of these propositions must be resolved against the contention of defendants. The master’s duty to his servant to employ ordinary care to provide
With knowledge actual or imputed of the fact that a subtle and dangerous foe to human life m,ight be lying concealed in the bottom of the shaft, and Avith means for driving it out available and actually at hand, defendants’ remissness in failing to employ such means can appear in no other light than as a culpable breach of their duty to their servant. It is a fair inference to say that had the “sail” been operated immediately after the explosion, enough of the gas would have been withdrawn to prevent the pile of loose rock from becoming the lurking place of a dangerous .quantity and the conclusion is irresistible that had the “sail” been placed in position on Monday morning, before the men went down, it would have removed at once the gas overlying the water and Avould have carried off the gas afterward released by the stirring of the loose, rock and
On the second proposition, it is urged by defendants that Seals himself released his enemy and, therefore, must be held in law to have been negligent. This is not so. Seals was engaged in the very work his master bade him do. Had the master performed his duty, the enemy would not have been there and the servant could have worked in safety. He had the right to rely on his master’s assurance and was not charged with any duty to save himself until he knew, or in the exercise of reasonable care, should have known, that the master had been derelict and had sent him into danger. Manifestly, Seals did not know of the presence of gas until the Water‘had been removed and the pile of dirt and rock had been opened. The tub then had been loaded and started upward and no means of escape remained.
A careful inspection of the record convinces us that the case was fairly tried and submitted and that the judgment is for the right party. Accordingly, it is affirmed.