May 21, 1931.
1. NEGLIGENCE: Contributory: Miner: Explosion: Leaving Safe Place. Where the evidence shows that the miner, whose duty it was to fasten caps over the ends of fuses, engaged at the magazine in the thirty-five-foot limestone tunnel, on the approach of a motor-driven car on the nearby track turned to cross the track to avoid the approaching car, and in doing so brushed the shoulder of another miner carrying a lamp which emitted sparks, and almost immediately an open box in his hand containing one hundred dynamite caps exploded, causing his death, he was not guilty of negligence which as a matter of law bars a recovery. He did not turn from a place of safety at the magazine and walk immediately across the track in the path of a lamp emitting sparks, but he turned to cross the track to avoid the approaching car, and in doing so was confronted by the other miner with a lighted lamp.
2. ____: Knowledge of Danger: Inference from Facts. An inference that defendant knew or should have known that employees with lighted lamps would pass in dangerous proximity to the powder magazine in the six-hundred-foot limestone tunnel, may be inferred from evidence showing that tracks for motor cars were maintained in the middle of the tunnel for the transportation of limestone, that the deceased miner was in charge of the magazine where caps and fuses convenient for use were kept, that the magazine was near the tracks, that the floor of the tunnel on the opposite side of the tracks was muddy, that natural light extended only one hundred feet into the tunnel, that drinking water for employees and carbide for their lamps were kept between the magazine and the tunnel entrance and on the same side of the tracks, that many employees carried, on the front of their caps, lamps from which projected a three-inch flame, and that sparks were emitted from the flame when it came in contact with limestone dust or other solid particles; and the evidence tending to establish these facts, the court did not err in refusing to withdraw from the jury the charge that defendant negligently permitted employees with lighted lamps to move in dangerous proximity to the magazine at which deceased was required to work, although no witness testified to having seen miners with lighted lamps pass in dangerous proximity to the magazine, and no one that defendant knew or could have known that the miners habitually did so.
3. ____: Promulgation of Rules. The charge that defendant negligently failed to promulgate rules for the safety of employees is sustained by evidence tending to show that, in conducting the business of mining limestone, fuses must be capped, stone mined, tracks laid in the tunnel, tracks repaired, cars loaded, cars unloaded, that about forty employees were engaged in the work, that they encountered each other in the performance of their duties, that they used the tunnel as a passageway, that the tunnel was six hundred by thirty-five feet, that a magazine where caps and fuses convenient for use were kept was maintained in the midst of the tunnel, that deceased was in charge of the magazine, and that miners habitually carried on the front of their caps lamps from which projected a three-inch flame, from which was emitted sparks when it came in contact with limestone dust and other solid particles. Under such circumstances, the question of defendant's duty to promulgate rules for the safety of the employees was for the jury.
Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.
Jones, Hocker, Sullivan Angert and W.A. McCaleb for appellant.
(1) Plaintiff's deceased husband was guilty of contributory negligence, as a matter of law. The danger of walking across the car tracks, with an open box of dynamite caps in his hand, immediately in the path of the sparking light carried by Geisler, was open and obvious to deceased and the danger of injury under such circumstances was so imminent and glaring as to bar recovery under the doctrine of contributory negligence. Watkins v. Bird-Sykes Bunker Co., 16 S.W.2d 43; Dixon v. Construction Co., 318 Mo. 59; Egan v. Gas Electric Co., 233 S.W. 239; Ward v. Car Fdy. Co., 293 S.W. 492; Williams v. Ice Co., 214 S.W. 385; Jablonowski v. Cap Co., 312 Mo. 189; Van Bibber v. Swift Co., 286 Mo. 339; Watson v. Marble Co., 290 S.W. 649; Hall v. Coal Mining Co., 249 S.W. 444; Knoles v. Tel. Co., 265 S.W. 1005; Jennings v. Ry. Co., 243 S.W. 207; Reynolds v. Ice Storage Co., 184 S.W. 934; Kilmer v. Zinc Co., 227 S.W. 861; Kube v. Coal Mining Co., 209 S.W. 614; Maize v. Coal Co., 203 S.W. 633; Robnett v. Brewing Co., 209 Mo. App. 378; Cook v. Hines, 235 S.W. 156; Patton v. Tea Co., 15 S.W.2d 360. (2) The evidence must support the charge of negligence as alleged, and if it does not the jury cannot consider it. (a) There is no evidence that defendant permitted its employees to pass in close proximity to the powder magazine, usually or customarily. As far as the evidence shows, the miners always passed a sufficient distance to the west of the magazine to avoid danger. (b) The allegation of negligence in question was not drawn on the theory of respondeat superior, but upon the theory that defendant permitted a dangerous practice to be followed by its employees. The theory of the allegation was that defendant was guilty of personal, primary negligence as distinguished from its liability under the doctrine of respondeat superior. (3) No duty is imposed on the master to adopt rules where the dangers attending the work are obvious or of common knowledge and fully understood by the servant. 39 C.J. 472, sec. 586; Tatum v. Crabtree, 94 So. (Miss.) 451; Rhodes v. Ry. Co., 161 N.W. 652; McCafferty v. Railroad Co., 76 A. 865; Stewart v. Iron Co., 125 N.Y.S. 1073; Norfolk Western Ry. Co. v. Graham, 31 S.E. 604; Pern v. Wussow, 129 N.W. 622. (a) The failure of defendant to establish rules was not the proximate cause of the accident. Jennings v. Ry. Co., 243 S.W. 207; Reynolds v. Ice Storage Co., 184 S.W. 934; Kilmer v. Zinc Corp., 227 S.W. 861. (b) The evidence did not show any necessity for rules.
Mark D. Eagleton and Hensley, Allen Marsalek for respondent.
(1) The court properly submitted the case to the jury. (a) The law presumes, in the absence of evidence to the contrary, that deceased was in the exercise of ordinary care. Buesching v. Gas Co., 73 Mo. 219; Burt v. Nichols, 264 Mo. 1; Hatchett v. Rys. Co. (Mo.), 175 S.W. 880; Stewart v. Gas Co. (Mo.), 241 S.W. 909. (b) In passing upon a demurrer to the evidence, it is the duty of the court to accept as true all evidence in favor of plaintiff, and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to countervail or overthrow inferences in plaintiff's favor. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Buesching v. Gas Light Co., 73 Mo. 219; Gratiot v. Railroad, 116 Mo. 450; Linderman v. Carmin, 255 Mo. 62; Scherer v. Bryant, 273 Mo. 596; Steffens v. Fisher, 161 Mo. App. 393. (c) The burden of proving negligence on the part of the deceased rested upon the defendant. Buesching v. Gas Co., supra; Raymen v. Galvin (Mo.), 229 S.W. 750; Chaar v. McLoon, 304 Mo. 238. (d) The evidence does not convict the deceased of contributory negligence, as a matter of law. Burt v. Nichols, 264 Mo. 1; Unrein v. Hide Co., 295 Mo. 353; Head v. Lumber Co. (Mo.), 281 S.W. 441; Cunningham v. Lead Co. (Mo.), 4 S.W.2d 802; Wilson v. Railroad, 317 Mo. 647; Allen v. Ry. Co. (Mo.), 294 S.W. 80; Hoffman v. Lime Co., 317 Mo. 86; Stahl v. Railroad (Mo.), 287 S.W. 628; Biondi v. Coal Co. (Mo.), 9 S.W.2d 596; Shubert v. Fleming (Mo. App.), 1 S.W.2d 852; Lampe v. Brew. Assn., 204 Mo. App. 386. (2) The court properly refused defendant's withdrawal instructions. From the evidence, the jury could find that the defendant negligently permitted other miners with lights on their caps to come in dangerous proximity to the place where the deceased was handling the dynamite caps. Authorities, Point I (b). (3) The evidence showed a negligent failure on defendant's part to promulgate rules for the proper regulation of its business. Soltesz v. Provision Co. (Mo.), 260 S.W. 990; Haggard v. Railroad Co., 302 Mo. 19; Wilborn v. Lead Co., 268 S.W. 657; Peppers v. Glass Co., 165 Mo. App. 569; 3 Labatt, Master Servant (2 Ed.) sec. 1110; Vol. 4, sec. 1504. (4) There was ample evidence from which the jury could find defendant liable for the act of Geisler in moving, with a light on his cap, in close and dangerous proximity to the deceased. Sec. 4233, R.S. 1919. (5) Withdrawal instructions should be unambiguous, and not leave the matters to be withdrawn in doubt, or intermingled with other matters properly in the case. Komor v. Foundry Co. (Mo. App.), 300 S.W. 1028; Latham v. Hosch, 207 Mo. App. 381; American Auto. Ins. Co. v. Rys. Co., 200 Mo. App. 317; Kinlen v. Railroad, 216 Mo. 145; Schulz v. Smercina, 1 S.W.2d 113.
This case came to me on reassignment. Action by Elizabeth Gisi to recover for the death of her husband, William Gisi, while in the service of defendant in its mine in Ste. Genevieve County. On suggestion of the marriage of plaintiff to one Jacob, the proceeding continued in the name of Elizabeth Jacob. The trial resulted in a verdict for $8,500, judgment accordingly, and defendant appealed.
It is alleged (1) that defendant negligently failed to use ordinary care to furnish Gisi a reasonably safe place to work, in that it required him to handle explosive caps at or near a place used by other employees carrying lighted lamps on the front of their caps, from which sparks emitted, thereby causing an explosion and the death of Gisi; (2) that defendant negligently permitted said employees with said lamps to move in dangerous proximity to a powder magazine at which it required Gisi to handle said caps, thereby causing an explosion and the death of Gisi; (3) that defendant negligently failed to promulgate rules for the safety of employees in that it failed to require said caps to be handled outside the mine, and failed to require employees carrying said lamps to refrain from dangerous proximity to others handling explosives, thereby avoiding an explosion and death of Gisi; (4) that defendant, acting through its employees, negligently moved with said lamp in dangerous proximity to Gisi, thereby causing an explosion and the death of Gisi. The answer was a general denial.
I. Defendant contends its demurrer should have been sustained for the reason the plaintiff, in her effort to make Contributory a case, shows conclusively that her husband was Negligence. guilty of negligence which contributed to his death.
There is evidence tending to show the following: Defendant conducts a limestone mine in Ste. Genevieve County. A tunnel thirty-five feet wide and thirty-five feet high extends from the north six hundred feet southward into the mine. Natural light entering through the opening extends one hundred feet into the tunnel. The limestone is transported from the mine in motor-driven cars over two tracks, each twenty-three inches wide. The tracks are on the ground in the center of the tunnel. The drinking water for employees and the carbide for lamps were on the east side of the tunnel and fifty feet from the entrance of the tunnel. A cupboard (magazine) resting on a bench ten feet long and three feet high was also on the east side of the tunnel and one hundred feet from the entrance of the tunnel. It is four feet from the bench to the east rail of the east track. The large box of caps and dynamite were stored outside of the mine. Caps and fuses convenient for use were kept in the cupboard. The defendant had many employees carrying, on the front of their caps, lamps from which projected a three-inch flame. If the flame came in contact with limestone dust or other solid particles, sparks were emitted. This occurred in defendant's mine whenever employees carrying lamps walked into a current of air.
On September 6, 1924, William Gisi, plaintiff's husband, was in the service of defendant as helper to one of its miners. In the course of his employment it was his duty to fasten caps over the end of fuses. On the day in question, and while he was so engaged at the bench and cupboard, Geisler, another employee, carrying a lighted lamp on the front of his cap, came from the south end of the tunnel for drinking water. The ground west of the tracks was muddy, causing Geisler to walk on the east side of the tunnel. As he "came up to" Gisi, his (Geisler's) lamp was emitting sparks. Gisi's lamp was not lighted. At that time a motor was approaching, and Gisi turned westward to cross the tracks with an open box in his hand containing one hundred dynamite caps. In turning to cross the tracks he brushed Geisler on the shoulder as he passed in front of him toward the west side of the tunnel. Almost immediately, and by the time Gisi cleared the tracks, there was an explosion resulting in his death and serious injury to Geisler. The boxes containing dynamite caps had inscribed on them the following: "Blasting Caps. Dangerous. Handle Carefully. Keep in a Dry Place. Keep Open Lights Away."
Defendant contends that Gisi was guilty of negligence as a matter of law in that he "turned from a place of safety at the powder magazine and walked immediately across the tracks in front of Geisler and in the path of the lamp, which at the time was emitting sparks, with an open box of dynamite caps in his hand, when he knew or should have known of the danger of an explosion."
The evidence does not sustain the contention. It tends to show that Gisi turned to cross the tracks to avoid the approaching motor. In turning he was confronted with Geisler and the sparks. Thus situated, he cannot be convicted of negligence as a matter of law in crossing the tracks. Indeed, it does not appear that he could have done otherwise in his effort to avoid the motor and the sparks. The demurrer was well ruled.
II. The defendant next contends there was no evidence to support the charge that defendant negligently Knowledge permitted employees with lighted lamps to move in of Danger: dangerous proximity to the powder magazine at which Inference. Gisi was required to work, and for that reason it contends the court erred in refusing its instruction withdrawing the charge from the consideration of the jury.
No one testified to having seen miners with lighted lamps pass in dangerous proximity to the magazine, and no one testified that defendant knew or could have known that miners habitually did so. Even so, there was evidence tending to show the maintenance of tracks through the tunnel, the operation of trains over the tracks, the use of the tunnel as a passageway by miners with lighted lamps, and the muddy condition of the ground on the west side of the tunnel. From this it may be inferred that defendant knew or should have known that employees with lighted lamps would, most likely, pass in dangerous proximity to the magazine. The contention is overruled.
III. Defendant next contends there was no evidence to support the charge that defendant negligently failed to promulgate rules for the safety of employees, and for that reason Rules: it contends the court erred in refusing its Promulgation. instruction withdrawing the charge from the consideration of the jury. It argues that plaintiff's work was dangerous, but not complex, and therefore it was under no duty to promulgate rules.
In Gaska v. Car Foundry Co., 127 Mo. App. 169, l.c. 177, 105 S.W. 3, the question was under consideration. In the course of the opinion the rule is stated as follows: "The proposition is supported by all the decisions and treatises that, under certain circumstances, it becomes the duty of an employer to prescribe rules for the conduct of his business according to methods reasonably adapted to insure the safety of his employees. And the chief circumstance on which the duty to do this depends, is that the business is an intricate and complex one in which different workmen or groups of workmen have distinct tasks, and one group in the performance of its tasks is liable to endanger the safety of some other group engaged in different tasks."
In the instant case the evidence tends to show that in conducting the business, fuses must be capped, stone mined, tracks repaired, cars loaded, cars driven and cars unloaded. About forty employees were so engaged. Of necessity, they encountered each other in the performance of their duties. All of them used the tunnel as a passage-way. Under the circumstances, the question of defendant's duty to promulgate rules was for the jury.
IV. Defendant assigns error on the refusal of an instruction withdrawing the fourth charge of negligence. It Dangerous Act. abandoned the question in its points and authorities.
The judgment should be affirmed. It is so ordered. All concur.