126 Mo. App. 660 | Mo. Ct. App. | 1907
This action is to recover damages for personal injury received by plaintiff while employed in defendant’s service by reason of an explosion of dynamite. At the close of the evidence in plaintiff’s behalf the trial court sustained a' demurrer thereto and plaintiff took a nonsuit with leave to move to set it aside, which the court afterwards refused to do.
Plaintiff was engaged in mining for defendant and at the time of the explosion was engaged in pushing with a tamping bar a stick of dynamite combined with a fuse and cap into a drill hole. In order to make a proper explosion a cap is fastened onto the end of a fuse. The end of the fuse carrying the cap is then put through a small hole punched horizontally through the end of the stick of dynamite. The cap end of the fuse is then carried along the stick and is embedded near the other end. The drill hole should be large enough so that the stick of dynamite can be inserted into it without pulling the cap out from where it has been inserted, as it is being pushed into the hole.
The negligence charged is in the selection and preparation of the steel drills with which to drill the holes for the reception of the sticks of dynamite, and also lack of sufficient help. The drill furnished was alleged to be too small and made a hole not large enough to receive the dynamite with the fuse and cap> attached. Defendant’s answer was a general denial.
The evidence in plaintiff’s behalf showed him to be
In our opinion two propositions destroy plaintiff’s case, either justifying the court in giving the peremptory instruction for defendant. His evidence discloses con-
Again, there is nothing but the merest conjecture to show which of several causes made the explosion. It might have been caused by plaintiff’s improper mode of tamping or pushing the dynamite in; or by loose powder in the hole; or by improper placing of the cap, etc. If these, defendant was of course not liable. As has been so frequently stated: “When the injury of which complaint is made may have resulted from either of several causes, for only one of. which the party sued is liable, it is for the complainant to show with reasonable certainty that the cause for which the party is liable produced the result.” [Warner v. Railway, 178 Mo. 125, 134; Caudle v. Kirkbride, 117 Mo. App. 412.]
The judgment is affirmed.