Durrant v. Lexington Coal Min. Co.

• Citation: 97 Mo. 62,10 S.W. 484
• Parties: DURRANT v. LEXINGTON COAL MIN. CO.
• Decision Date: 04 February 1889
• Court: United States State Supreme Court of Missouri

10 S.W. 484

97 Mo. 62

DURRANT v. LEXINGTON COAL MIN. CO.

Supreme Court of Missouri.

February 4, 1889.

1. MINES AND MINING — INJURY TO MINERS — LIABILITY OF OWNERS.

Act Mo. March 23, 1881, (Acts Mo. 1881, p. 165,) provides that "the owner, agent, or operator of every coal mine operated by shaft * * * shall provide safe means of hoisting and lowering persons in a cage covered with boiler-iron, so as to keep safe * * * persons descending into and ascending out of said shaft," etc., and gives any one injured by willful failure to comply with its provisions a right of action therefor. Held, that one employed at the bottom of a shaft, who was injured by a lump of coal which fell from a car, and which would not have fallen had the car been covered as provided by the statute, could recover therefor under the act.

2. SAME — VIOLATION OF STATUTE — KNOWLEDGE OF EMPLOYE.

Knowledge by plaintiff of defendant's failure to comply with the statute will not defeat the action.

3. TRIAL — RECEPTION OF IMPROPER EVIDENCE — EXCLUSION.

Where illegal evidence is admitted over defendant's objection, and is subsequently expressly excluded at plaintiff's request, defendant has no ground for complaint.

Appeal from circuit court, Lafayette county; JOHN P. STROTHER, Judge.

Action by Charles P. Durrant against the Lexington Coal Mining Company. Judgment for plaintiff, and defendant appeals.

Wallace & Chiles, for appellant. Graves & Aull, for respondent.

BLACK, J.

This is an action for personal damages sustained by the plaintiff while in the employ of the defendant, a corporation engaged in mining coal. The action is founded upon the act of March 23, 1881, (Acts 1881, p. 165.) The act, among other things, provides: "The owner, agent or operator of every coal mine operated by shaft, shall provide suitable means of signaling between the bottom and the top thereof; and shall also provide safe means of hoisting and lowering persons in a cage covered with boiler-iron, so as to keep safe, as far as possible, persons descending into and ascending out of said shaft." "The top of each and every shaft, and the entrance to each and every intermediate working vein, shall be securely fenced by gates properly covering and protecting such shaft and entrance thereto." Section 14 enacts: "For any injury to persons or property, occasioned by any willful violation of this act, or willful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby."

The evidence shows, without any dispute, that defendant failed to cover its cages with iron or other material; that the top of the shaft had no gates or other protection; and the only means of communicating from the top to the bottom of the shaft was by the human voice. It is in these respects that the petition charges a willful failure to comply with the statute, and upon these issues the case went to the jury.

The evidence also shows that plaintiff was employed as cager at the bottom of the shaft; his duty being to put the pit cars on the cage, so that they could be hoisted to the surface. As one cage, with its loaded car, would go up, another one, with an empty car, would come down. The plaintiff was endeavoring to get a loaded car on the down cage, and, the car being off its track, he stepped into the cage to pull it on. While he was doing this a large lump of coal fell from the car which had reached the top of the shaft, and broke and fractured the bones of one leg. Had the cage been covered, it is quite clear that he would not have been injured.

Since the plaintiff was not going up or down the shaft, and did not go into the lower cage for that purpose, the defendant insists that, as to him, there was no violation of that clause of the statute which makes it the duty of defendant to "provide safe means of hoisting and lowering persons in a...