Rogers v. Rundell

• Decision Date: 06 January 1908
• Citation: 106 S.W. 1096,128 Mo. App. 10
• Parties: ROGERS v. RUNDELL et al.
• Court: Missouri Court of Appeals

106 S.W. 1096

128 Mo. A. 10

ROGERS v. RUNDELL et al.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

1. MASTER AND SERVANT — INJURY TO SERVANT — NEGLIGENCE — EVIDENCE.

Evidence in an action against mine owners for death of a miner by the caving of the roof of the mine held sufficient to show negligence in supporting the roof.

2. SAME — CONTRIBUTORY NEGLIGENCE — ASSUMPTION OF RISK.

It is a question of contributory negligence, and not of assumption of risk, where the peril of a servant in the performance of his duty is increased by the negligence of the master, and the servant knowing of the negligence, and that it had rendered the performance of his duty more hazardous, continues in the performance of his duty.

3. SAME — INSTRUCTIONS.

An instruction in an action for death of a miner from the caving of the roof of the mine

that if he knew the dimensions of the drift in which he was injured and the character and condition of the ground in which it was cut, so far as they were reasonably ascertainable, and the way in which the timbering was done, and the risks and danger incident to working therein under all said conditions, and continued to work therein without complaint, there could be no recovery, is objectionable as leaving out of consideration the question whether or not deceased might have reasonably, under the conditions as they appeared to him, have proceeded with the work, with the expectation of safety by the use of ordinary care; there being evidence tending to show that he might have reasonably thought he could safely proceed with the work.

4. EVIDENCE — OPINIONS — EXAMINATION OF EXPERTS.

The question "what do you say from your experience * * * as to the propriety of driving a drift with limestone and boulders and selvage 35 feet wide and 25 feet high" is not a proper question for expert testimony, as it only calls for an expression of a conclusion.

5. SAME.

The question asked an expert miner "what effect would the leaving out of a collar brace have on the strength of the timbering in a drift" is competent.

6. SAME.

The question to an expert "I will ask you to state whether, in your judgment as a miner, it was proper or improper to cut that drift at the width which it was cut and the way in which the ground was handled" was improper, as asking for a conclusion, and not for an opinion.

7. APPEAL — REVIEW — HARMLESS ERROR — QUESTIONS TO WITNESSES.

Though the question to an expert "I will ask you to state whether, in your judgment as a miner, it was proper or improper to cut that drift at the width which it was cut and the way in which the ground was handled" was improper as asking for a conclusion, and not for an opinion, the answer that it was cut the usual width was proper.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Action by Nellie Rogers against M. W. Rundell and others. Verdict for defendants was set aside and a new trial granted, and defendants appeal. Affirmed.

F. L. Forlow and A. E. Spencer, for appellants. W. C. Irwin, W. J. Owen, and Thomas & Hackney, for respondent.

BROADDUS, P. J.

The cause was tried before a jury, and a verdict rendered in favor of the defendants, which, upon motion of plaintiff, was set aside. From the action of the court in setting aside the verdict, the defendants appealed.

The suit is against the defendants for damages in the sum of $4,500, which plaintiff claims was the result of defendants' negligence, which caused the death of her husband, Charles M. Rogers, a miner. The negligence alleged was, generally, in failing to properly cut and construct timbers, or otherwise protect the drift from caving; in cutting the drift too wide and too high; in failing to furnish sufficient timbers and of sufficient size and quality to render the drift reasonably safe; in failing to properly place and secure said timbers so as to prevent their falling or being knocked down; and in suffering a large boulder to remain in the roof of the drift. The answer was a general denial.

The grounds upon which the court granted a new trial were as follows: That the court erred in giving improper instructions asked by defendants, in refusing competent relevant evidence offered by the plaintiff, and in admitting incompetent and irrelevant evidence offered by the defendants. The plaintiff introduced evidence that, at the time of the killing of her husband, he was in the employ of the defendants, in defendants' mine, in a drift from 160 to 170 feet from the surface of the ground; that this drift was 80 feet long from the shaft, and that it was 34 feet wide, and about 25 feet high; that it was in what was called "bouldry selvage ground," which was treacherous, and was liable to fall from the effects of the air dissolving and loosening it. There was evidence that the place where plaintiff's husband was killed and where the cave of the roof occurred, and on the left hand side of the drift, were two old drifts, which ran into the main drift six feet from the bottom thereof, and extended as high as the roof of the same; that the defendants failed to put in support of the roof in said drifts, and failed to shore up the left side of the drift, and failed to take necessary precaution to prevent the dirt from falling from the roof of the two old drifts; that before the timbering was done in the drift there was a boulder in the roof that hung down below the place where the timbering should go, and that defendants' foreman instead of removing the boulder popped it off, that is to say, in mining parlance, shot off the hanging part, and that it was then discovered that the boulder was in selvage ground, and this boulder was uncovered and showed a surface of several feet. There was evidence that the post used by defendants in timbering the shaft were placed as far apart as 8 feet, and in some places further, and in one place the post were 14 feet apart; and that in some instances these post were of no greater diameter than 7 or 8 inches at the smallest part. It was in evidence that, in...