Overby v. Mears Mining Company
| Decision Date | 02 May 1910 |
| Citation | 128 S.W. 813,144 Mo.App. 363 |
| Parties | DELIA OVERBY, Respondent, v. MEARS MINING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Dade Circuit Court.--Hon. B. G. Thurman, Judge.
AFFIRMED.
Judgment affirmed.
Edgar P. Mann and Edward J. White for appellant.
(1) The petition did not allege a cause of action, in that it only charged a condition "likely" to cause an injury and wholly failed to allege facts sufficient to constitute a cause of action for either common law or statutory negligence. Beasley v. Transfer Co., 148 Mo. 421; Plefka v. Knapp, 145 Mo. 318. (2) The petition alleging that the defendant required the decedent and his co-employees to stand in the tub or can in being hoisted from the mine and the undisputed evidence showing that the decedent was standing on the rim of the tub, holding the cable with only one hand and a torch in his right hand, when he fell from the tub, and that it would have been safer to hold the cable with both hands and have one foot down in the tub, as the defendant required him to ride, he was guilty of such negligence as to prevent a recovery, in thus knowingly selecting the more dangerous way of performing his duty in the face of the defendant's rules. Schaub v Railroad, 106 Mo. 92; Renfro v. Chicago R. Co., 86 Mo. 302; Wetzen v. Lead Co., 5 Mo.App. 598; Moore v. Railroad Co., 146 Mo. 572; Illinois Steel Co. v. McNulty, 105 Ill.App. 594; Upthegrove v. Coal Co., 96 N.W. 385. (3) The defect in the shaft caused by the lacing being off, was a patent, obvious defect and the danger therefrom was just as apparent to the decedent as to any one else, and the decedent assumed the risk, as matter of law, in the use of the shaft, as it was. Ft. Worth Iron Wks. v. Stokes, 76 S.W. 231; Griffiths v. Gidlow, 3 H. & N. 648; Senior v. Ward, 1 El. and El. 385, 10 Mor. Min. Rep. 646; Beach, Con. Neg., 371, sec. 140. (4) It was prejudicial and reversible error to permit the plaintiff's witness to state what, in his opinion, was a safe or customary manner of riding tubs out of the ground. Schermer v. McMahon, 108 Mo.App. 36; Madden v. Railroad, 50 Mo.App. 666; Boettger v. Iron Co., 136 Mo. 531; Allen v. Transit Co., 183 Mo. 413; Koenig v. Railway, 173 Mo. 698; Nash v. Dowling, 93 Mo.App. 156. (5) Evidence of subsequent repairs has always been held to be reversible error in this State. Alcorn v. Railroad, 108 Mo. 81; Mahaney v. Railroad, 108 Mo. 191; Bowles v. Kansas City, 51 Mo.App. 416.
John T. Sturgis for respondent.
(1) Instead of being a fatal defect to the petition, the use of the word "likely" in charging that because of the defective condition of the shaft the tub was likely to, and did, swing under and get caught, etc., is proper and is not stating what is "merely within the range of possibility." Watson v. Coal Co., 52 Mo.App. 372. (2) In many cases evidence of customary methods and conduct is held admissible on the question of contributory negligence and as tending to show the exercise of due care. 29 Cyc. 517; 21 Ency. Law (2 Ed.), 524; 29 Ency. Law (2 Ed.), 418; Knorpp v. Wagner, 195 Mo. 659; Spencer v. Branner, 126 Mo.App. 94; Brunke v. Tel Co., 115 Mo.App. 39; O'Mellia v. Railroad, 115 Mo. 220; Chicago & Co. Ry. v. Carpenter, 56 F. 451; Flanders v. Railway, 53 N.W. 544; Whitsett v. Railroad, 25 N.W. 104; Mo. P. R. Co. v. Hally, 30 Kas. 474; Bohn v. Railroad, 106 Mo. 434; Brady v. Railroad, 206 Mo. 531; Huhn v. Railroad, 92 Mo. 444; Tibby v. Railroad, 82 Mo. 299. (3) The evidence in this case does not show that the danger was a glaring one, and the case was therefore properly submitted to the jury. Booth v. Air Line, 76 Mo.App. 519; Rogers v. Rundell, 128 Mo.App. 15; Lee v. Railroad, 112 Mo.App. 401; Dean v. Woodenware Co., 106 Mo.App. 167; 20 A. and E. Ency. Law (2 Ed.), 122; Watson v. Coal Co., 52 Mo.App. 372. (4) The doctrine that the servant does not assume the dangers arising from the negligence of the master is abundantly sustained. Curtis v. McNair, 173 Mo. 370; Briscoe v. Railroad, 130 Mo.App. 513; Brady v. Railroad, 206 Mo. 528; Cothron v. Packing Co., 98 Mo.App. 348; Cole v. Transit Co., 108 Mo. 94. (5) Instruction No. 3 given for plaintiff, and which appellant says was erroneously copied, is from an instruction approved in Helfenstein v. Medart, 136 Mo. 607; and in Houts v. Transit Co., 108 Mo. 692; Beard v. Car Co., 63 Mo.App. 389; Swadley v. Railroad, 118 Mo. 278; O'Mellia v. Railroad, 115 Mo. 218; Mahaney v. Railroad, 108 Mo. 200; Soeder v. Railroad, 100 Mo. 673; Dekan v. Mercantile Co., 197 Mo. 267; Thorpe v. Railroad, 89 Mo. 662; Reeder v. Lime Co., 129 Mo.App. 107. (6) The question of contributory negligence arising from riding out of the shaft by standing on the rim of the tub or car was properly one for the jury and was submitted on defendant's own instruction. Coin v. Lounge Co., 222 Mo. 506; Brady v. Railroad, 206 Mo. 531; Edington v. Railroad, 204 Mo. 68; Dumpley v. Stock Yards Co., 118 Mo.App. 519; Murphy v. Railroad, 115 Mo. 125; Butz v. Construction Co., 137 Mo.App. 225; Briscoe v. Railroad, 130 Mo.App. 522; Gibler v. Railroad, 129 Mo.App. 93.
This is an appeal from a judgment of $ 6000, in favor of the plaintiff for the death of her husband, who was killed by falling from a tub while he was being hoisted from the appellant's mine in Newton county, Missouri, on July 29, 1907.
The appellant, at the time complained of, was a corporation engaged in mining for lead and zinc in Newton county, and the plaintiff's husband was in its employ. The appellant had two shafts at its mining plant, known as the Mascot shaft and the Homestake shaft. Plaintiff's husband's usual employment was underneath the ground at the Mascot shaft. On the evening of July 29, 1907, he descended the Mascot shaft for the purpose of working therein for the appellant. There was some change made and the Mascot shaft was not operated that night, and the deceased was directed to work at the Homestake shaft. The two shafts had been connected by an underground drift so that the deceased passed from the Mascot shaft through this drift to the Homestake shaft, and assumed his duties. The Homestake shaft was about two hundred and fourteen feet deep, and except for the distance of about forty feet from the surface, extended through solid rock. The first forty feet of the shaft had been cribbed. This is done by lining the shaft with lumber or timber laid horizontally, and is for the purpose of holding loose rock or dirt which might otherwise fall to the bottom of the shaft and injure the employees, and also for the purpose of keeping the shaft in proper condition. From the foot of the cribbing to the top of the drift near the bottom of the shaft, the shaft had been laced, and this is done by placing girders around the sides of the shaft at a distance of about ten feet apart and by nailing boards perpendicularly to these girders, thereby making a smooth inside surface of the shaft, so as to leave no obstruction for the tub or can to hang on while coming from the bottom of the shaft to the surface.
In the Homestake shaft, the boards used in lacing were about twenty feet long, and a foot wide. Sometime previous to the accident, some of the boards in the first and second tiers from the bottom of the shaft, had become loose and fallen off, and some had been removed by the foreman of the defendant.
The evidence was conflicting as to whether the deceased was acquainted with the true situation as to the boards being removed. He had performed but little labor at the Homestake shaft, and the testimony does not show that he had worked at that shaft previous to the night when he was killed, while the shaft was in the condition it was that night. The night shift ended at two a. m. At that time the men assembled, as was the custom, at the bottom of the shaft, to be hoisted to the surface. In hoisting men and ore from the bottom of the shaft, the company used a hoister, cable and cans or tubs. The hoister was on the surface, and to it the cable was attached like a rope on an ordinary windlass. On the other end of the cable, the tubs were attached by means of a hook, so that as one tub was sent into the shaft, it could be unhooked and another attached thereto.
The evidence shows that it was the custom of the men in going out of the mine, to stand on the rim of the can, and to take hold of the cable with their hands. There were about thirteen men in the employ of the defendant in the ground at the Homestake shaft on the night the plaintiff's husband was killed, and part of them got on the tub and went out when their shift's work had ended. The tub was let down to the bottom of the shaft again, and the deceased and two other employees got on the tub as others had, and started out. After they had been hoisted a short distance, the tub began to swing, and finally the hip of the deceased was caught under one of the girders from which the boards had been taken, and as he pushed away, the shoulder of another one of the employees on the tub with him, caught underneath another girder and caused the tub to tip so that deceased lost his balance and fell from the tub to the bottom of the shaft, and received the injuries from which he died within a short time.
The petition alleges "that the defendant negligently permitted the lacing boards to become loose, torn off and removed, and that on account thereof, and while the plaintiff and two other workmen were ascending the shaft in the usual manner, and while they were in the tub or can exercising due care, and by reason of the negligence of the defendant in the manner above indicated, the can in which they were riding swung to one side and caught under the loose and exposed timbers, and thereby causing the deceased to fall with great violence to...
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