113 Mo. App. 594 | Mo. Ct. App. | 1905
— The plaintiff’s suit is for damages alleged to have been sustained by him while in the employ of defendants, a zinc mining copartnership. The plaintiff, an experienced miner, was injured on August 5, 1902, by the premature explosion of a stick of giant powder which the plaintiff’s assistant, under his direction, was pushing into a drilled hole, using for the purpose the shank of a steel drill. It was shown that the holes after being drilled were usually filled with thé explosive late on each day and exploded before the next shift of miners began their work. The hole into which plaintiff and his helper, a man by the name of McKinley, were putting the explosive was drilled in flint rock. It is conceded that a spark of fire was thrown off from the flint when it was struck with the steel drill, which spark coming in contact with the-giant powder caused the explosion. The steel drill was not an instrument intended, for the purpose of what the miners call “loading the drill holes” or “shoving the powder” into them. But sections of gaspipes with wooden plugs in the ends were generally used because they were less liable to cause explosions.
At the time in question, plaintiff endeavored, to get-
At the close of plaintiff’s case, and also at the close of all the evidence, the defendants asked the court to instruct the jury to find for them, which the court refused to do. The verdict and judgment were for plaintiff, from which defendants appealed. The contention of defendants is that, the plaintiff’s injuries were the result of his own negligence, and that he assumed the risk; that the court admitted incompetent evidence; and that it committed error in giving and refusing instructions.
It is conceded that the steel drill used by plaintiff’s helper nnder his directions was unsafe and dangerous, of Avhich plaintiff, an experienced workman, was fully aware. But he seeks to avoid the responsibility of using the instrument on the ground that he had called the attention of defendants’ foreman to the matter and that he continued to use it under a promise that he would be furnished one safer and more suitable for the work. The
The use of the steel drill by the plaintiff was an act ■of the grossest negligence. It is a matter of common experience that where steel and flint are forcibly brought in contact, the result will be sparks of fire, and that fire ■coming in contact with powder produces an explosion. And no one knew such to be the case better than plaintiff. He was not authorized by anything that was ■said by the foreman to use the drill, because he was ■equally as well informed of the danger as the foreman. 'On .the face of things, the risk was so glaring, and at all times impending to such a degree, that no person of ordinary prudence could for a moment have believed that the drill could be used by the exercise of ordinary care with safety. A servant is not bound to obey the master when he has reason to anticipate that danger in the service is always impending and that he is liable to suffer injury at any moment, which the greatest care and caution on his part will scarcely avert. And besides, he ■was not bound to use the steel drill; he could have
As the plaintiff was not entitled to recover the court committed error in not sustaining defendant’s demurrer to the evidence. As the question already determined is decisive of the case, other questions raised become immaterial. For the reason given the cause is reversed.