Zeigenmeyer v. Goetz Lime & Cement Co.

113 Mo. App. 330 | Mo. Ct. App. | 1905

NORTONI, J.

(after stating the facts). — The finding of the jury for the appellant on the second count of the petition as above stated, eliminated from the case the charge of negligence in exploiting an extraordinary blast, and the finding for the respondent upon the first count of the petition affirmed that appellant was negligent in failing to provide respondent with a reasonably safe place in which to carry on his work, so that, as the case stands before us, the recovery is predicated upon the failure to furnish a safe place to work. The question of safe place is the only question with which we are called upon to deal. The question presented for our decision is, granting all the facts to be true as stated, does the law require appellant to furnish a place at all times reasonably safe to its servants who are conducting. business for it, the very nature of which business renders the place temporarily unsafe at times? •

The law does not require the master to furnish an absolutely safe place in every instance for the servant to work for the reason that the law recognizes that such requirement would be unreasonable on its part and impossible of fulfilment on the employer’s part, in view of the fact that there are many undertakings and employments which are dangerous within themselves and about the conduct of which no absolutely safe and secure place could be furnished. Therefore, the obligation' which the law places upon the master is to some extent a relative obligation and only requires him to exercise reasonable care to provide as safe a place for the performance of the services as the character of the work to be done will permit, or in other words, the law requires the master to furnish his servant a suitable place to' do his work, where, by the exercise of ordinary care on his part, he may perform his work with safety or subject only to such hazards as are necessarily incident to the employ-. ment. [Bradley v. Railroad, 138 Mo. 293, 39 S. W. 763; Sullivan v. India Mfg. Co., 113 Mass. 396; O’Connell v. Clark, 48 N. Y. 74-75; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Livengood v. Joplin, etc., L. & Z. Co., 179 Mo. 229, 77 S. W. 1077 ; 20 Am. & Eng. Ency. Law (2 Ed.), 55-57.] To follow the question still further, we find the rule of safe place is not applicable to every state of facts, nor is the principle of safe place pertinent in every case that may arise out of the multiplicity of employments and diversity of risks encountered. It has one well defined and thoroughly established exception. It is that the master is not required to furnish his servant a safe place in which to work where the danger is temporary only and when it arises from the hazard and progress of the work itself, and is known to the servant. [Davis v. Mining Co., 117 Fed. 122-124; Bradley v. Railroad, 138 Mo. 293, 39 S. W. 763; O’Connell v. Clark, 48 N. Y. 74-75; Armour v. Hahn, 111 U. S. 313-318; Finalyson v. Utica, Min., etc., Co., 14 C. C. A. 492-494; Durst v. Carnegie Steel Co., 173 Pa. St. 162-165; Whittaker v. Bent, 167 Mass. 588-589; Meehan v. Speirs Mfg. Co., 172 Mass. 375; Browne v. King, 100 Fed. 561; Anderson v. Min. Co. (Utah), 50 Pac. 815; Railroad v. Jackson, 65 Fed. 48; Livengood v. Joplin, etc., L. & Z. Co., 179 Mo. 229; 20 Am. & Eng. Ency. Law (2 Ed.), 57; City of Minneapolis v. Lundin, 58 Fed. 525; Kennedy v. Grace, etc., Co., 92 Fed. 116; Petaja v. Aurora Iron Min. Co., 106 Mich. 463; Beique v. Hosmer, 169 Mass. 541; Porter v. Silver Creek, etc., Coal Co., 84 Wis. 418; Clark v. Liston, 54 Ill. App. 578.] Indeed, the Amer. & Eng. Ency. of Law, vol. 20 (2 Ed.), at page 57, states a well-formulated rule on this subject in the following language: “If the place is unsafe because of the nature of the work, and a servant suffers injury in consequence thereof, he cannot hold the master liable, provided reasonable precautions were taken by the master to avoid injury. The risk of injury from such cause is one of the risks assumed by the servant.” It seems that this rule is conclusive of the case at bar. Here, the injury which befell the respondent came upon him from a falling stone resultant of a blast and was incident of the employment. It came about from the nature of the work being performed at the quarry and the master, having given plaintiff and all others employed warning thereof by causing one of its employees to sound the usual alarm by whooping, ¡prior to the exploding of the blast, which was a reasonable precaution taken by the master under the circumstances of the case to aid respondent in protecting himself from injury, the respondent is certainly precluded from recovery thereby.

What has been said above on the question of non-liability of the appellant for the injury in this instance is treated of in many cases as arising by virtue of the non-application of the principle of safe place because the danger from which the injury arose was but a passing danger, temporary in its nature, and arose from the prosecution of the work itself. Upon the theory that the principle of safe place does not apply in such cases, recovery has been denied in the cases above cited. The law therefore did not require the master to furnish a safe place as against such temporary dangers and the failure to provide such safe place was not negligence on its part.

The same result as that predicated upon the non-application of the principle of safe place, is usually reached in the application: of the principle of assumption of the risk. That doctrine can be applied to this case with equal force as that last above discussed, for upon entering the employment at the quarry, respondent assumed the risks which were ordinarily incident to the employment in which he engaged and in addition to such risks, by entering or continuing in the employment without complaint, he assumed the risks of extra hazards, the dang-ers of which he knew and understood, or the dangers of which were obvious. [Lee v. Railroad, 112 Mo. App. 372, 87 S. W. 12; Mathias v. K. C. Stock Yards Co., — Mo. App. —, 84 S. W. 66; Dean v. St. Louis Woodenware Co., 106 Mo. App. 167, 80 S. W. 292; Browning v. Kasten, 107 Mo. App. 59, 80 S. W. 354; Adolff v. Columbia Pretzel & Baking Co., 100 Mo. App. 199, 73 S. W. 321; Bradley v. Railroad, 138 Mo. 293, 39 S. W. 763; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102; Epperson v. Postal Tel. Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Aldridge, Admr., v. Midland Blast Fur. Co., 78 Mo. 559; Sullivan v. Mfg. Co., 113 Mass. 396.] According to the testimony of the respondent, he knew full well the resultant falling of stones after these blasts and gave testimony to the effect that such stones, as large as his fist and smaller, had fallen around his place of refuge on the bridge frequently theretofore and that he had seen them fall from one hundred to three hundred yards in the river from block shots. It is a matter of common knowledge that a falling-stone as large as one’s fist, is dangerous in the extreme and liable to produce death by striking upon the head. Respondent then, had full knowledge of the dangers and by continuing in the service thereafter, he would be precluded from recovery by virtue of assuming such risk in continuing therewith, with full knowledge of its dangers. But aside, from this, we are not compelled to depart from the primary rule of assumption of the risk to find the law which would preclude a recovery in this case for the stone which inflicted the injury upon respondent came as a result of a blast exploded in the necessary discharge of the work at the quarry and without negligence on the master’s part. We all know that in the operation of stone quarries, blasts are discharged for the purpose of raising the stone from its stratum and that as a result of such explosion, fragments of stone, large and small, are thrown high into the air; that gravitation will bring them to the earth with such force as is liable to inflict severe injuries to one in their path. The risk attendant upon the work which is so prosecuted, is not an extra hazard, but is essentially and necessarily an ordinary hazard and risk of the employment and is therefore assumed by the servant by implication in his contract of hire.

The United States Court of Appeals for the Eighth Circuit, in the case of Browne v. King et al., 100 Fed. 561, said:

“In entering the employment of the defendant the plaintiff assumed the ordinary risks incident to the employment engaged in. These risks were such usual hazards, dangers and perils as belonged to the peculiar occupátion of blasting rock with dynamite, including the carelessness of those engaged with him in the same work and employment. The employer was bound to furnish a reasonably safe place and appliances with which to do the work. But where the nature of the business is extremely dangerous, and conditions are necessarily continually changing by reason of placing and setting of blasts whereby dangerous conditions arise continually, through the acts of the servant, without the knowledge of the master, the employer cannot be held responsible therefor without his faiilt, but such temporary dangerous conditions arise from the nature of the employment, and are among the natural and ordinary risks and hazards attending the employment, for which the defendant is not liable.”

See also the following cases: Livengood v. Joplin, etc., L. & Z. Co., 179 Mo. 229, 77 S. W. 1077; Epperson v. Postal Tel. Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Bradley v. Railroad, 138 Mo. 293, 39 S. W. 763; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102; Junior Elec. Co., 127 Mo. 79, 29 S. W. 988; Aldridge v. Midland Blast Furn. Co., 78 Mo. 559; Lee v. Railroad, 112 Mo. App. 372, 87 S. W. 12; Bunt v. Sierra, etc., Gold Min. Co., 138 U. S. 483; Davis v. Mining Co., 117 Fed. 122; Finalyson v. Utica, etc., Min. Co., 14 C. C. A. 492; Railroad v. Jackson, 65 Fed. 48; Meehan v. Speirs Mfg. Co., 172 Mass. 375; Whittaker v. Bent, 167 Mass. 588; Durst v. Carnegie Steel Co., 172 Pa. St. 162; O’Connell v. Clark, 48 N. Y. 74; Sullivan v. India Mfg. Co., 113 Mass. 396; 20 Am. & Eng. Ency. Law (2 Ed.), 5T.

From what we have said, it is apparent that the judgment cannot stand. The injury which the poor man received was severe and permanent and no doubt hastened his death, but under the law as it is, there was no obligation upon the employer to compensate him or his estate therefor and we must apply the principles of law as we find them in the adjudicated cases, regardless of the feelings of sympathy which we may entertain for the injured party.

It is wholly unnecessary to discuss the question of contributory negligence so ably presented in the briefs. The judgment must be reversed. It is so ordered.

Bland, P. J., concurs, Goode, J., absent.