Sommer v. Continental Portland Cement Co.

246 S.W. 212, 295 Mo. 519, 1922 Mo. LEXIS 129

• Court: Supreme Court of Missouri
• Decided: December 6, 1922
• Status: Published

Opinions

sonal injuries resulting from a premature explosion in the quarry of defendant where the plaintiff was employed. Upon a trial before a jury there was a verdict in plaintiff’s favor in the sum of twenty-five thousand dollars, from which the defendant has appealed.

In August, 1916, the plaintiff was employed as a common laborer in defendant’s rock quarry in St. Louis County. In the performance of his work, the plaintiff was required to use powder and other explosives. Acting under the direction of the defendant’s superintendent, the plaintiff was tamping earth and other substances in one of the holes that had been bored for the purpose of blasting. This was one of a number of holes that had been drilled in a ledge of rock by the defendant; it was about seven inches in diameter and eighty or ninety feet in depth, and at the time of the explosion it was partly filled with a compound of a highly explosive character. This material was called Trojan powder, and was in packages eight inches in length and five inches in diameter, each weighing eight or nine pounds. It was the custom to drop seven or eight of these cartridges into a hole and to tamp each one, after it had been lowered, ■with a piece of wood. This procedure was followed until the hole was loaded. In this instance from fifty-four to sixty-five cartridges had been placed in the hole and had been tamped in by the plaintiff as a part of his duties. Some of these' cartridges were dropped into the hole by.one of the defendant’s foreman, and following the dropping of one into the hole by a fellow-workman, named Alongi, the explosion occurred which resulted in plaintiff’s injuries. They consisted in the loss of the sight of both eyes, almost the entire hearing of his right ear, with severe burns about the head and face and such a nervous shock as to render him unconscious for about four weeks. Subsequently thereto he has been unable to perform any labor. At the time he was earning $2.20 per day. He testified that he did not know the cause of the explosion and had not been warned of the dangler of same. Cross-examined, however, he testified that he knew the material being used in blasting was dangerous and that it would explode.

Witnesses for plaintiff who qualified as experts testified that it was usual and customary in loading holes for shots, to lower the cartridges of powder into same by means of a string, instead of, dropping them into the holes or to open the cartridges or packages and pour the contents into the holes.

The defendant’s evidence tended to prove that Trojan powder had not been used by the defendant in its business prior to January, 1916; that when this powder was purchased, the manufacturer of same sent to the defendant’s plant an expert to instruct the defendant in its use, and this expert advised the defendant that the way to use this powder was to drop the cartridges down into the hole and that it was perfectly safe to so do, and that he demonstrated this to the defendant and actually dropped many cartridges of the powder into the holes of the same depth-of the hole here in question, and that defendant thereafter used this powder in the same way up to the time plaintiff was injured, using the same three times for the purpose of blasting down rock in thé months of January, June and August, 1916; that this powder would not he caused to explode by a jar, such as dropping it down into a deep hole, but was only subject to be discharged by particular shock from the explosion of a detonating cap, or by an electric shock, or by an ordinary black powder fuse which communicated fire to it. The defendant’s evidence further showed that it relied upon the representations and followed the instructions of the manufacturer of the powder as. to the method and manner of loading the holes in question. The defendant also offered the testimony of four experts that it was usual and customary all over the country to load the shots of Trojan powder into the holes for the purpose of blasting in the manner in which the hole in question was loaded, that is, to drop the cartridges down into the hole, and that this method had been used with safety. Plaintiff was permitted to testify that he was married; and a foreman of the defendant who was injured by the explosion was required to state, when on the witness stand, whether he had settled with the company for his injuries.

Error is assigned in the trial court’s rulings upon this testimony, in permitting plaintiff’s counsel to argue the fact that the foreman had settled with the defendant for his injuries. The giving and refusing of instructions was also complained of; and that the defendant’s negligence was not touched upon in the argument of the case, but the argument of counsel for plaintiff was confined to the severity of the plaintiff’s injuries, with a view of inflaming the minds of the jury. The presence-of the plaintiff’s wife and small children in the courtroom dur ing tiie trial and the cries of the youngest of the latter for its father are urged as occurrences calculated to improperly influence the minds of the jury.

I. Technically considered the admission of the testimony of the plaintiff that he was a married man was error. The rule of exclusion in all of the cases, however, will he found to have been applied where the nature of the inquiry, usually as to the number and ages children, was held to have had a tendency to increase the verdict, and. hence prejudicial. There was no such showing here and the manner in which the question as to the marital status of the plaintiff was propounded, although wholly immaterial, did not constitute prejudice and this assignment is overruled.

II. Prejudicial error is assigned in permitting one of the defendant’s foremen, who had been examined in chief by the defendant and who had testified that he had been injured in the same explosion, to answer an inquiry on cross-examination as to whether he had settled with the defendant for the injuries inflicted. The trial court overruled the objection t.o this inquiry on the ground expressly stated that the testimony tended to show the attitude and relation of the witness to the defendant.

Statutory recognition is given to the right to show the interest of a witness in a controversy for the purpose of affecting his credibility. [Sec. 5410, R. S. 1919.] Numerous eases may he cited attesting the application of this rule under different circumstances and conditions.

In Koenig v. Union Depot Co., 173 Mo. l. c. 722, where the action was for damages for killing plaintiff’s child, and the attorney for plaintiff was a witness for her, defendant was not allowed to show by cross-examination that the witness had a financial interest in the case. This court held that the exclusion of this testimony was reversible error.

In Czezewzka v. Railway Co., 121 Mo. 213, this court said: “It often becomes necessary, in order that a jury may properly weigh the testimony of a witness, that his temper, feeling and disposition he made manifest by cross-examination. The extent to which this may go mnst necessarily he left largely to the discretion of the trial judge.”

In State v. Harris, 209 Mo. l. c. 443, this court held: “While the authorities' cited concur in holding that a liberal cross-examination should be allowed, they also hold that the extent to which it may go is largely in the discretion of the trial court.”

In Huss v. Bakery Co., 210 Mo. l. c. 76, this court in banc held that it was proper for defendant on cross-examination of plaintiff’s witnesses to show that the witnesses and plaintiff were members of the same labor union: ‘ ‘ This evidence was admitted for the purpose of showing the relation that existed between the plaintiff and his witnesses, in order that .the jury might take that fact into consideration in determining 'what weight it should give to their testimony. Such evidence is always admissible.”

In the ease of Gordon v. Railroad, 222 Mo. l. c. 537, it was held that the action of the trial court in permitting plaintiff’s counsel to show in cross-examination of a witness for defendant that the witness had been discharged by defendant for drunkenness and that the witness then had pending with defendant an application for reinstatement, was correct and proper: “it was not improper, for the purpose of affecting his credibility as a witness, to bring out any facts on cross-examination which tended to show any bias in favor of the party whose witness'he was. or his interest, if any, in the suit.”

Under these rulings, in view of the limitation of the trial court as to the scope of this testimony and the request by the defendant and the giving of same by the court of the usual instruction as to the interest and credibility of witnesses, no fault is found with the admission of this testimony.

It may interest the curious to know that in' several other jurisdictions such testimony is held not improper as tending’ to show an admission of liability on the part of the defendant. [Nickles v. Railway, 74 S. C. 102; Weiss v. Kohlhagen, 58 Ore. 144; Railway v. Thomas, 167 S. W. (Tex.) 785; Grimes v. Keene, 52 N. H. 330; Howland v. Bartlett, 86 Ga. 669.]

There was nothing in the testimony objected to indicative of a compromise. The rule, therefore, against the admissibility of testimony of that character was not violated.

III. The legal propriety of instruction numbered 1 the jury, is as follows:

“You are further instructed that the court submits for your consideration the following questions only:

“First; Whether defendant was negligent in dropping the cartridges into the holes instead of lowering them with a cord.

“Second. Whether the explosion resulted from the method used in dropping the cartridges and was caused thereby.

“Third. Whether the explosion was due solely to accident without negligence on the part of the defendant; and upon these questions the court gives you the following instructions.”

This is followed by the other instructions which were given.

The charge of negligence as disclosed by plaintiff’s petition, upon which it went to the jury, is as follows: That “the defendant negligently dropped the said cartridges into said deep, rough holes without breaking the cartridges up or open, and without providing any means of letting down easily and safely into the holes; that this method of loading the said holes was negligent and unsafe and dangerous, and likely to cause the said powder to explode, particularly with the jagged, sharp rocks on the sides and bottoms of the holes, as the defendant knew, or would have known by the exercise of reasonable care.”

Instruction No. 1-A, given by the court at the request of the plaintiff, conforms to the above charge. This instruction is as follows:

“The court instructs - the jury that the master is required to use ordinary care and to adopt reasonably safe methods in the conduct of its business, and that, in the use of high explosives ordinary care is such care as a reasonably prudent man would use in view of the hazardous nature of the business, and if the jury shall find from the evidence that plaintiff was employed on and about August 26, 1916, by defendant as a laborer in the quarry mentioned in the evidence, and was inexperienced in the handling of high explosives, and if the jury shall find that holes had been drilled to a depth of approximately eighty feet into which a high explosive, to-wit, Trojan powder, was being loaded, and if the jury shall find that plaintiff was instructed by defendant to assist in these operations, and at the time of the explosion mentioned in the evidence was, pursuant to the instructions of defendant’s foreman (if in fact he was so instructed), standing at or close to one of said holes while same was being loaded, and if the jury find from the evidence that while so standing there, defendant’s foreman caused to he dropped a cartridge of said explosive weighing approximately eight pounds down the said hole and that said hole had in it at the time a considerable amount of said explosive, and if the jury find from the evidence that such methód of loading the said hole under said conditions was not reasonably safe and that an explosion resulted therefrom and was caused thereby and that plaintiff was injured by the said explosion, and that, at the time he was in the exercise of reasonable care on his part, and if you further find that defendant knew or by the use of ordinary care as defined above, could have known, that such method was not reasonably safe, then your verdict should be for plaintiff. ’ ’

“The correctness of this instruction,” as G-raves, J., said in a tersely phrased dissenting opinion when this case was transferred from Division One to be heard in Court in Banc, “cannot be questioned. The question in the case was whether or not the method adopted by the defendant for lowering’ the powder in the hole was a negligent method. Better stated, whether or not the method used and adopted was a reasonably safe method. Upon the ground of negligence, this was the sole question.” But under none of the questions submitted by the trial court in Instruction 1, as the only ones to be considered, was the jury required to consider, much less find that the method employed in loading the holes was not a reasonably safe method. Instruction 1 calls for a comparison between the method of loading used and that of lowering the explosives by means of a cord for the purpose of determining negligence. That was not the question. Both methods might have been reasonably safe or otherwise. Instruction numbered 1, therefore, is error in that it does not submit the only question that was to be considered, viz: Was the méthod used a reasonably safe method? The conflict, therefore, between instruction numbered 1 and instruction numbered 1-A is such as to mislead, rather than gpide, the jfiry. [Glover v. Meinrath, 133 Mo. l. c. 304; Muirhead v. Railway, 103 Mo. l. c. 252; Railway Co., 93 Mo. l. c. 84.]

IV. It is contended that the trial court erred in refusing to give the following instruction requested by the defendant:

“7. There is no evidence in this case that the cartridges or powder used by defendant, and mentioned prematurely explode, and you cannot, consider this charge in plaintiff’s petition or find in favor of plaintiff thereon.”

There is ample evidence to show that the defendant knew the character of the explosives being used by it when the plaintiff was injured. To authorize the giving of an instruction of the character above indicated would, upon a showing that the manufacturer or his agent had complied with his duty, tend to exonerate the defendant from that degree of care ordinarily required in such cases. "Whatever may have been the directions as to the use given by the manufacturer or its agent to the defendant, the duty of the latter to exercise ordinary care for the safety of its employees remained the same. The refusal of the trial court, therefore, to give this instruction was not error. ' .

Y. I concurred in the dissent to the Commission-, er’s opinion that the verdict should not exceed twenty thousand dollars. This concurrence was based not upon the writer’s personal conviction, as I have indicated in other cases, that the amount indicated should constitute a maximum that might he allowed for injuries of the character in question; hut that definite information might he afforded as to the amount of damages this court would approve upon a subsequent review of the same facts if such review became necessary. As the case must he reversed and remanded, this will suffice in the disposition of the question of excessive damages.

Other than the foregoing, additional assignments of error are not stressed by the defendant and consequently do not demand our consideration.

For the reasons stated, the judgment of the trial court is reversed and the case remanded for a new trial.

Graves, J., concurs; Higbee and David E. Blair, JJ., conrur in the result; James T. Blair, J., dissents in separate opinion; Woodson, C. J., and Elder, J., absent.