Spencer v. Bruner
| Decision Date | 24 June 1907 |
| Citation | 103 S.W. 578,126 Mo.App. 94 |
| Parties | J. A. SPENCER, Respondent, v. R. E. BRUNER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. John W. Halliburton, Special Judge.
AFFIRMED.
Judgment affirmed.
A. E Spencer for appellant.
(1) Instead of showing the condition, and the usual and ordinary method of handling such situations in the mines of the district, the witness was permitted to tell what he would have done, and to say that the way, in his opinion, to mine is to timber and put up stringpoles and wood over it, and keep everything from dropping on the men. And then he adds over defendant's objection, that his methed would make the drift safe for men to work under. All this was error, and of the most prejudicial character. (2) The defendant was only bound to exercise ordinary care to provide plaintiff a reasonably safe place in which to work. Wojtylak v. Coal Co., 188 Mo. 260. He was, of course, not bound to adopt the best, or safest or most approved method. Smith v Railway, 69 Mo. 32. He had performed his duty when he adopted the method in general use. Beckman v. Association, 98 Mo.App. 555. Hence the question is not, could the ground have been timbered and supported, or, how would the witness Niverson have handled and supported it, and evidence of such character is error. Mason v. Mining Co., 82 Mo.App. 367; Berning v. Medart, 56 Mo.App. 443; Bohn v. Railway, 106 Mo. 429. (3) The court erred in giving instruction numbered 3 for plaintiff. By this instruction the jury were told to consider and award damages for plaintiff's loss of earning capacity, which he "will necessarily sustain in the future." The evidence tends to show that some of the effects of the injury may be permanent, but entirely fails to show a decreased earning capacity in the future. (4) The court erred in giving instruction numbered 1, for plaintiff. 1 Labatt, Master and Servant, p. 1260, sec. 466; Helfenstein v. Medart, 136 Mo. 613; Duerst v. Company, 163 Mo. 621.
Perkins & Blair for respondent.
(1) Under the state of the record the point made by appellant that he was prejudiced by the admission of the evidence of Niverson, to which he objected is not well taken and is purely technical. Monohan v. Coal Co., 58 Mo.App. 74; Bruce v. Bombeck, 79 Mo.App. 237; Grocery Co. v. Smith, 74 Mo.App. 424. (2) Instruction numbered 3 given for plaintiff correctly declared the law.
Action of a servant against his master to recover damages for personal injuries alleged to have been caused by the master's negligence. Judgment was for plaintiff in the sum of two thousand three hundred and seventy-five dollars, and the cause is before us on the appeal of defendant.
At the time of the injury, Monday, May 24, 1903, defendant was operating a lead and zinc mine, and plaintiff was employed therein as a shoveler. From the wall of a long drift which was about twenty feet wide and twenty-five or thirty feet in its perpendicular dimension, defendant had begun to cut a smaller drift, the roof of which was sixteen or eighteen feet above the floor of the main drift. On Saturday preceding the injury, blasting had been done in the new drift which had detached a volume of material for shovelers to remove and had so shaken the roof that it was necessary to guard the laborers employed on the floor against injury from the falling of material which remained attached to the roof, but which was so loosened that it was likely to fall. The method adopted by defendant to remove this danger was to "trim" the roof, which means that workmen were to remove the loosened material with pick and spoon. Plaintiff was one of the men ordered by the foreman to do this work. He objected on account of his inexperience, but was told by the foreman that it could be done in safety, if he would clear the roof ahead of him and not stand, while working, under an uncleared place. Thus assured, plaintiff began work at the entrance to the small drift and, owing to the height of the ceiling, at first, was compelled to use a ladder, but as the drift penetrated the wall a short distance (about fourteen feet) and the roof and floor rapidly converged, plaintiff, at a distance of, perhaps eight feet from the entrance, could reach the loosened materials with his implements while standing on the floor. While at work on the ladder, he discovered a crack in the roof which appeared to him as an indication of a dangerous condition. He immediately notified the foreman of its presence, and the latter ascended the ladder and inspected the place, after which he directed plaintiff to go on with the work, assuring him that there was no present danger to be anticipated from trimming over that place and that it would "take a shot" to bring down the slab of material which the crack showed had been somewhat loosened. He further ordered plaintiff and his colaborers to "put a shot" into that place that evening just before they quit work for the day. Ignorant of the fact that he was threatened by imminent danger and relying on the superior knowledge of the foreman, plaintiff obeyed the order, trimmed over the area in which the crack appeared and beyond it, to a place where he could work from the stope without using a ladder. While thus engaged, a large slab fell from the place where plaintiff feared it would fall, and he was injured by being struck by some of the falling material. It appears that the roof of the small drift was in what miners term "soft ground." It was composed of soapstone and selvage, or decomposed rock. When exposed to the air, soapstone rapidly hardens and becomes very brittle and, during the process of this change, is likely to crack and slough off. Witnesses for plaintiff say that the usual method followed in instances of the character described is to support the roof by timbers, while those for defendant state that it is not usual to install such artificial supports until after the roof has been trimmed and that, in the present case, owing to the condition of the stope and to the necessity for further blasting in extending the drift, timbers would have been displaced by explosions and, therefore, it was impractical to use them.
It is denied by the witnesses for defendant that a crack existed in the roof, that the foreman was notified by plaintiff of the existence of such defect, or that he gave plaintiff the assurance of safety in the place, on which the latter claims to have relied. It is the theory of defendant that plaintiff failed to heed the admonition to work ahead of him, but incautiously stood under material which he pulled down on himself. The foreman admits he knew plaintiff was inexperienced in the work of trimming, but insists that he would have escaped injury had he followed the directions given him.
The issues of fact presented by the pleadings and submitted to the jury are thus defined in the first instruction given at the request of plaintiff: "If you find and believe from the evidence in this case that on the ___ day of May, 1903 the defendant, R. E. Bruner with other persons was engaged in mining for lead and zinc in Jasper county, Missouri, under the name of the B. & H. Mining Company and that on said day the plaintiff was employed by said company to work in its said mine, then it was defendant's duty to use ordinary care to furnish plaintiff a reasonably safe place to work in said mine, having due regard to the kind, character and nature of the business in which they were engaged and the work which the plaintiff was employed to perform; and if you further find from the evidence that on said ___ day of May, 1903, the defendant, R. E. Bruner, and such other persons as were associated with him in the operation of said mine, had carelessly and negligently permitted the roof of one of the drifts in said mine to become dangerous and an unsafe place in which to work, and if you further believe from the evidence that plaintiff was employed by defendants to work in the capacity of shoveler and that his duties under his employment were to shovel dirt and that defendant's ground boss ordered and directed plaintiff to go to work on the roof of said drift and assist in trimming the roof thereof and that plaintiff notified said ground boss that he had had no experience in such work, and that defendant's said ground boss thereupon instructed plaintiff to go ahead and assist in the trimming of said roof, and that acting under such instructions plaintiff did so, and while engaged in said work plaintiff discovered what he believed to be an unsafe condition of the roof of said drift and notified said ground boss that he thought it was unsafe to continue said work, and if you further find and believe from the evidence that the danger from working at said place in said drift was not so obvious and glaring that a person of ordinary prudence would have refused to continue working therein, and that after plaintiff notified said ground boss, if you believe he did so, said ground boss made an examination of the roof of said drift and directed plaintiff to proceed with said work and stated that the roof was all right, it would take a shot to bring it down, and that plaintiff, relying upon the superior knowledge of the said ground boss, resumed said work, and while engaged therein and while in the exercise of ordinary care and caution on his part, by reason of the carelessness and negligence of defendant in permitting the roof...
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