*1 208
, A сourt should never withdraw a from the jury un less all reasonable men in impartial the honest of a fair and exercise judgment would draw the conclusion from same the facts which Courtney
condition issue. Guaranty v. Ocean Accident & Corporation, 703, (2d) 858; 346 Mo. 142 W. it S. is well settled may conjecture that verdicts not speculation. be based on Ham Ry. Co., 787; ilton v. St. Louis-San Francisco 318 123, Mo. 300 S. W. al., 40, (2d) Mullen v. Lowden et 344 124 1152; Lappin Mo. S. W. al., Storage v. Prebe et 345 131 (2d) 511; Mo. S. W. Federal Cold Pupillo, Co. v. 139 (2d) 996, S. W. l. c. 1001, and Also, cases there cited. it is well possibility settled that mere negligence is not a sufficient negligence foundation for an inference of justify which will jury. submission of a case to a Mullen v. Lowden supra et al., (2d) S. W. l. c. 1156], [124 ; With hearsay eliminated, we think that all reasonable minds agree would speculation say would be conjection mere that Haney hook, struck the mail and we are constrained to that plaintiff rule failed to make a question. submissible case on that And also rule we there was no substantial evidence that ground light uneven and insufficient were causes contributing Haney. causes of the death necessary It will not be to rule other questions. judgment reversed, should be and it is so ordered. Dalton Osdol, CG., and Tern concur.
PEB foregoing opinion CUBIAM:—The by Bradley, adopted C., is opinion as judges court. All the concur. Pipeline Company
Earl Stumpf, Appellant, v. Panhandle Eastern and Ossie W. (2d) Steele. No. 39314. 189 S. W. 223. One, July 2, Division 1945. Rehearing Denied, September 4, 1945. *2 Cowgill & Crouch, Julian, Trusty Pugh, Pop-
Crouch & Vance & ham and Sam appellants. Mandell for *3 Kuraner, Shubert, Haysler Poague, & Johnson Davis Bay Alfred for respondents. B. Johnson
and Lowell *4 212 judgment upon YAN OSDOL, Appeal from a entered C. damages
verdict fоr $75,000 personal defendants in action for for an injuries.
Plain tiff-appellant, employee an Co- of the Consolidated Electric operative injured (hereinafter when “REA”), referred to as was explosion dynamite gas charge high-pressure pipe- the burst the line of Pipeline Company defendant-respondent, Panhandle Eastern (hereinafter The Company”). sometimes referred to as “defendant escaping gas ignited by enveloped flames explosion, and plaintiff. explosion Highway The point occurred at State south of 22 County, city Route in Audrain of the about two miles west Mexico. locality highway In this and approximately runs east west, paved and is awith 22-foot which laid concrete slab had been within a prior few explosion. weeks Tracks The Rail- Alton Company road and the Wabash and Company Railroad are south of parallel with highway, Company Alton Railroad the track The being nearer. pavеment The distance from the line south of the the north line right-of-way Company of the of The Alton Railroad 185 is. about feet. ground between slab and the railroad right-of-way by is Highway Depart- “controlled” the State ment from whom Company “permit” has secured lay 1930 to their pipelines Company highway. across Defendant has pipelines traversing two 22-inch passing the area and under the railways highway; and pipelines (the one) one of north laid in a direction, line passes northeast-southwest under south of the point slab at a explosion; due north of the scene of the angle crossing highway 35°; at the pipeline (the is south one charge) away, was broken is 70 or 80 feet highway angle crosses the 41° A power 15'. line REA is north highway and, coming west, from parallels highway nearly until opposite north of the scene explosion where it northwardly. turns and extends
When employees was injured, he and two other of REA excavating (at point -being were of exрlosion, hole feet south of the highway) center of the to accommodate anchor by which a permanent pole stub braced. It was contem- plated permanent that the pole guy stub passing would sustain wires (cid:127)at 22-foot highway staying clearance power over the the REA line to the bracing northward. Such method of the northbound *5 REA suggestion line was at Highway used of Depart- the the State ment, there space because was not pavement sufficiеnt north of the in which to set an properly stay anchor to line. Plaintiff his the and two employees, Thompson dug fellow and Dubbert, down about had hard, dark, two and had oval feet there encountered obstruction they thought rock, charge dynamite (one stick) which to and a was. be placed they in the hole and off” out obstruction “set to «blast the might dig setting deeper purpose for anchor. The ob- the the thought struction, stone, pipeline to be was near.the south over-or Company. of defendant There was was that the obstruction evidence stone, pipeline not the itself. previously, highway
Some weeks the had been widened and im- proved by paving, employees and REA power had moved its the northwardly line several feet When to the location we described. have change made, employees, Thompson Dubbert, this was REA and had temporary set pole point approximately stub at a west feet plaсe of explosion. temporary the the anchor pole stub and were placed (too aligned so far to be the west to northbound the line) REA stockpile gravel belonging High- because a to State the way Department place permanent covered the where stub pole the should set. .anchor be according (or days,
“Two more” months or five months and eleven witnesses) to defendants’ casualty, before the an anchor was set on highway aligned guy north of the power the REA line the approaching Company’s from west. Defendant foreman defendant-respondent loca- drivers, Steele, W. who knew the Ossie gas pipelines, engaged nearby tion then for- was in work go- Company. Observing Thompson defendant were and Dubbert ing use, use, making and did accommodate in the hole to anchor, approached presence them Steele and warned of the along pipe passing highway; small north serviсe side there testimony highway was walked over area Steele south of the Thompson and talked with concerning and Dubbert location of Company’s line with proposed reference to site permanent pole them, anything stub and told “That won’t bother here, (at point.where there is no line there” had been told he contemplated permanent pole it was the anchor for stub point set, place explosion). was at or near the There оf the testimony tending to show that this advice of Steele later plaintiff by Thompson communicated to and Dubbert. More opinion. in evidence will be stated course Negligence alleged 'failing of defendants was under the circum- warning signs to maintain stances or markers of the location of its negligently misleading concerning the line’s line, general pleaded location. Defendants con- tendered the issue and tributory negligence. Plaintiff-appellant assigns in the in- error given defendants, structions trial court the instance of ruling refusing discharge jury court in because prejudicial propounded during of an asserted the cross- plaintiff. Defendants-respondents examination of the .trial assert *6 giving ruling in in the of instructions or court committed no error say, moreover, upon discharge jury; to defendants the motion any negligence on the evidence as a did not «establish whole liability upon predicated, should be part of either defendant negli- contributorily plaintiff of evidence under all and gent We first conten- as a matter of law. will examine defendants’ submissibility bearing plaintiff’s of upon question tions of the ease. by employees urged
It is that the REA and its defendants including consequently plain licensees and bare were protected any special make by duty tiff 'was not of defendants to Plaintiff preparations warnings danger. safety, for his such as of urges de by principle; ruled such but that case should not be liability negligently may subjected fendants to for the mislead be ing Thompson with statements of defendant Steele in his conversation Dubbert, by plaintiff. and them afterwards communicated to Now, light according to the most .fav- evidence considered in the assuming know plaintiff, (knowing orable to defendant to Steele gas pipeline; Company’s high-pressure location of defendant knowing employees pole REA of the were to set and anchor point subsequent explosion; having оr near the of the observed dynamite employees that the the REA blast rock or of used to out holes) describing other obstructions in acted in location of the REA employees line. should have known that would be He subjected great danger exploded proximity to if were line; rely REA employees probably upon and that the would his consequently fail precautions statements and to take to ascertain the true circumstances, opinion, location of the line. Under these our acting duty defendant employees Steele in had toward ordinary REA describing care in exercise the location and course II, the line. Yol. Law Torts,- pp. Restatement of the 826-7 302-3 secs. and 305. length (“two more,” according time months or to evidence ®f according favorable days, months and eleven de- —five witnesses) alleged between the statements Steele and fendants’. plaintiff’s injury lapse is stressed defendants. The time be- alleged negligent tween the act defendant Steele injury import upon fact of of whose conduct was direct, (or causes) producing injury. or efficient Vol. cause of the II, Torts, -pp. 1170-1, Restatement the Law of on Comment Clause (d), sec. 433. Company subjected
But it is that defendant said cannot liability misleading Thompson for Steele’s statement to and Dub bert, Company for the reason that defendant authorized the had not statement, the statement scope was made outside of the of Steele’s regular testimony Company’s duties. The district question. this It upon is material Spellman, foreman, knew location Steele of the Speilman 'defendant testimony men if he lines; that, work, gas Steele’s encountered might be working along pipelines about the who utilities other they “go and see what them, he would over coming in contact and he didn’t *7 doing” pipe them had a line there and “tell we were “going a knew others were to drill damaged”; want it that if Steele to they them were too close our go hole would over and tell there he they going to ask what it, and them move or were lines ask to them dynamite it. a do, going put were to in There would be they whether making might Steele, It is that in questions lot of he ask them.” seen concerning the location Thompson to and Dubbert of the statement acting own, his purpose the was not in furtherance of a pipeline, performance but the was of his duties within statement made in emplоyment in of the business of scope of his and furtherance Company protection property. recog- of its defendant in the employer person any injury nized is that an liable to third for rule person property proximately to which results from tortious either acting employment. employee scope conduct of the within the of his Jur., Servant, p. 983, 35 Am. Master 552. Milazzo and sec. And see City Co., Sup., v. Kansas Gas 180 S. W. 2d for careful study of the rule. stated, contributorily it is that
As contended was negligent as matter law. gas
Plaintiff knew piрelines traversed the area. must have He explosion dynamite known an pipeline near a would be dangerous. Conveyances maps showing and the location and course Company’s of defendant lines were recorded filed in office of of deeds at Mexico. Markers over each of defendant recorder. Company’s pipelines standing were in the on fence row the north highway line right-of-way, and a pipe vent stood over the south linе at along the fence the north line of Rail- The Alton Company’s right-of-way. road A building belonging small to defendant Company right-of-way stood south of the of the Wabash Railroad Company; building Company’s defendant regulators housed gas pressure valves which gas into line supplying reduced city Formerly of Mexico. showing marker the location of Company’s defendant line had been in area stockpile used for the gravel. Prior to explosion, stockpile had been mоved the underlying earth’s surface “bladed” —the marker had not been replaced, however. The “backfill” or along gas crown of earth lines of defendant Company perceptible highway north right-of-way and south of the Wabash right-of-way; but the crown could not be seen in the explosion area of the where earth had been smoothly. bladed off all circum- explosive under
It is not considered the nse explosive although who uses negligence, one is in itself stanсes which ordinary care, precautions those use should, in the exercise and its use potentialities of article are commensurate with the the. out using to blast in Plaintiff, the circumstances. under knowledge and under the obstruction in the hole in view his ordinary should, the exercise surroundings, circumstances and ascertain precautions to for taken safety, care his own have minute considering the advice yet, Company’s-line; the location of defendant be considered fact or Steele, was a circumstance given and communicated (if it is advice was believed that such failure plaintiff), believe it not be held we should ascertain, ascertaining, and to avail himself of the means of recovery as a presence should defeat his pipeline and course against of law. The is ruled defendants. matter contention jury. We hold that made a case submissible out negligence failing to exer Contributory hypothesized (In asсertaining presence pipeline cise care in course of the . . . 6); failing presence note the struction Number “to *8 . signs, . . or . . company’s of defendant vents markers . or pipeline of of defendant to notice crown earth . . . over the ... the where- company or ... to note other evidence of ” (Instruction 7). . pipeline abouts or said . . Number course of defendants, Both a it found instructions directed verdict for if were negli- part plaintiff and believed thаt such failure on of gence negligence and that such or to cause “caused contributed plaintiff’s injury.” failing
It is that contended these instructions are erroneous in jury contributory negligence hypothesized advise the should that directly injury plaintiff. contribute to cause the of contributory negligence
In
for
legally
order
bar the
recovery,
plaintiff
negligent
it is not sufficient
and that
negligence
cause,
such
cause,
contributing
contributed
a
or was
injury
of his
contributing
injury would
eáuse but for which the
—a
negligence
not have been
sustained. The
been
must have
proximate
a
cause,
is,
“proximate
a
cause” as
term is
used
expressing
direct,
in
a
may
reasonably regarded
be
as a
cause
producing or
cause;
as-entering
forming
part
efficient
into
or
direct, producing
injury.
cause of the
Perkins v.
efficient
City
Kansas
Co.,
1190,
103;
Southern R.
329 Mo.
49 W.
Hires
S.
2d
Grocery
Letts Melick
Co.,
Sup.,
408;
v.
Mo.
296 S. W.
Oates v.
Metropolitan
Ry. Co.,
535,
(As
St.
168 Mo.
217
568,
1159,
Milling
p.
431;
Mouridridge
Co.,
sec.
Giles
351 Mo.
v.
745,
negligent
173 S. W. 2d
conduct
a defendant.
treating
may
questions
And in some
other
have to be considered
deter-
eases
in
mining
“proximate
whether
be held to be a
an actor’s conduct should
legal
in
cause”
should be held to
cause
the sense
the conduct
be
supra.)
injury.
(Sеcs. 431, 465,
Torts,
Law of
Restatement
negli-
submitting
contributory
As a rule an instruction
the issue of
gence
jury
plain-
finds
should direct in
and effect that if the
substance
contributorily
negligence
tiff
negligent
and that such
specified,
as
injury
(or
directly
proximately) contributed to his
City,
injury,
to cause his
v.
Mahaney
he cannot recover.
Kansas
46
Clay County
793,
&
329
Joseph
Co.,
St.
Mo.
Auto Transit
J.,
817;
1084,
368;
S.
45
Jur., Negligence,
W. 2d
38 Am.
C.
p.
sec.
of the.
Negligence, p.
920;
412;
R.
and comment
1345, sec.
102 A. L.
page
court, King Rieth,
475,
108 W. 2d at
page
v.
fact defendant his negli- reasonably believed that such plaintiff, jury the could have cause, direct, efficient producing a or gence only was not of defendants injury, and the or direct, producing efficient cause a cause negligence the circumstances that the under or regarded direct, producing a reasonably which as should not be responsible. be considered efficient for which should cause (Numbers 6 And, assuming jury believе, did instructions the the so We 7) jury to find for defendants. and regard nevertheless authorized the prejudicially erroneous. 6 and 7 as Instructions Numbers By respect. it in another Instruction Number 6 is erroneous dyna engaged discharge jury “persons advised that duty care as a a exercise such explosives mite other are under ”. carrying . . very prudent work man would exercise in on such (Our as failure to exercise italics.) Negligence generally is defined (not “ordinarily man” ordinary prudent cаre care, that which very prudent cir man) would under same or similar exercise usually except in standard such cumstances. Such of care obtains duty by is where, ordinance, instances there statute or absolute higher course, ordinary care is relative provided. standard Of requires term, commensurate precautions and its exercise reasonably In dangers anticipated under circumstances. to be 646, 893, by 22 Guthrie, 116 Mo. cited case of Dowell v. S. W. given defendants, рlaintiff-appellant an instruction at the instance of 651), only language (116 question in page contained Mo. “the at this caution in case whether the defendants used care and is, handling prudent persons explosives . cautious . . ” circumstances; italics.) (Our would . . . have used under the error in standard of in favor of stating No’ticethat the care was appellant. Although (116 655) page Mo. at court stated in clearly very fairly struction degree defined “the of care incum dеfendants, case,” upon bent under the circumstances of “degree clear care” is this was intended reference to as ordinarily person prudent reference the care caution of an paragraph, inasmuch in the as, same the court said that different might minds at arrive different conclusions to whether the “as de handling explosives degree fendants in exercised that care ordinarily prudent persons would exercised have under (Our italics.) the circumstances.” The case of Schaefer v. Frazier- Co., App., Davis Mo. W. Const. 125 S. 2d defendants, cited representative holding of cases proprietor liable, land regardless care, the exercise of of explosives blasting if his use premises “involves a direct invasion an adjacent proprietor.” 117 Walsh, App. page Hoffman See v. 93 S. W. *10 page at 855. cause, proof burden instruction a another trial of this
Upon as avoid errors may be so drafted to instance at defendants’ given Number 8 herein. Instruction in defendants’ are disclosed such as jury that the “mere 8 advised the Number Instruction fact make or injury does not the defendants sustained plaintiff any presump it this case nor does raise them liable in either of any consequence thereof were sustained injury or tion such defendants or either part care on the of the by any want- of fault or at plaintiff entitled to have a verdict is before the them, them, either of burden yоur against defendants or hands against his case such prove to upon plaintiff is preponderance a your by reasonable defendants to satisfaction ” (Our italics.) The . . case. . of the the credible evidence cautionary fact” unnec “mere and the argumentative, instruction is the use of such essary. Furthermore, court has criticized this proof in a burden of your satisfaction” requirement as “to reasonable greater upon- casting proof burden action as instruction in civil issue) be upon than should (having proof party the burden Distributing Pagett Missouri Motor Cor law. v. required under the 352 Mo. 490; Dawidoff, Johnson v. Sup., 177 S. W. 2d poration, Co., 349 Mo. 467; Seago v. New York Central R. W. 2d 343, 177 S. W. 2d 336. 1249, 164 S. given request, 4 and at defendants’ Numbers
Instructions duty plaintiff were under no jury that defendants instructed the signs warning markers to indicate the location to erect instructions are in conflict pipeline. Plaintiff contends that these given plaintiff’s instance, at with Number wherein Instruction alleged negligent failure under the circumstances to defendants’ conjunctive warning hypothesized in the maintain markers negligent misleading plaintiff. And hypothesized Instructions Numbers and 5 are further contends that erroneous signs long having maintained markers for a defendants, in that explosion, duty assumed prior time of continued period of may Apparent conflict in instructions maintenance. obviated may theory be stated that trial And it another trial. alleged defendants, petition, and as in his
negligence of was not assumed) duty (legal because of defendants maintain upon based warning markers. unnecessary assignment to review the
We believe error discharge jury because of refusing prejudicial asserted asked defendants’ counsel. It is effect of not upon will confront problem a like the court probable another trial cause. of the Bradley Dalton, CG., remanded.
Reversed concur. opinion foregoing by Van Osdol, C., PER CURIAM:—The judges court. All concur. opinion as .opted