Batesell v. American Zinc, Lead & Smelting Co.

207 S.W. 742, 276 Mo. 210, 1918 Mo. LEXIS 115

• Court: Supreme Court of Missouri
• Decided: December 19, 1918
• Status: Published

Opinions

WOODSON, J.

We have carefully read the majority and minority opinions delivered by the Springfield Court of Appeals in this ease reported in 190 Mo. App. pages 231 and 254, respectively.

The majority lays too much stress upon the fact that the use of dynamite is a dangerous business, known to all, which the deceased should have borne in mind, and should have avoided the danger incident to its explosion. In one sense that is true, - but in the sense in which the deceased was handling it, it is not true. For instance, I know it is dangerous to be around while dynamite is being exploded, and I also know that it is comparatively harmless when the fuse attached thereto is not ignited and it is otherwise properly handled, hut I have no knowledge as to the proper manner of handling it, much less of the evidence that the fuse is on fire. Therefore, if I should approach a stick of dynamite without knowing that the fuse was on fire and had no knowledge of the evidences showing that fact, it could not he correctly stated as a matter of law that I was guilty of negligence in approaching it, even though the fuse was in fact on fire at the time; hut, upon the other hand, if I had been familiar with the evidences that it was on fire at the time I approached it, then unquestionably I would have been guilty of negligence. The same is true of the deceased. The evidence tends to show that he had no knowledge of the proper manner of handling dynamite and on account of inexperience he possessed no knowledge whatever of the evidences showing the fuse was on fire at the time he was injured, which, the evidence tended to show, would have been readily discovered by an experienced person.

Under those facts the law is plain as shown by the authorities cited by both the majority and minority opinions mentioned that it was the duty of the defendant to have instructed the deceased of the dangers complained of and have informed him how to have detected the evidences thereof.

With the foregoing preliminary observations, and after a thorough investigation of the record in this case and the authorities cited by counsel on each’ side, we are of the opinion that the minority opinion correctly declares the law of the case, and we, therefore, overrule the majority opinion and adopt the minority as the opinion of this court.

For the reasons stated, the judgment is reversed, and the cause remanded to the circuit court to re-try the case in harmony with the views herein expressed.

All concur, except Graves, J., who dissents, and concurs in Commissioner Bailey’s opinion.

PER CURIAM. — The above opinion of Woodson, J., is adopted by Court in Banc as its opinion.

Bond, G. J., Walker and Blair, JJ., concur; Williams, J., dissents; Baris and Graves, JJ., dissent, and concur in opinion of Bailey, G.