Goode v. Central Coal & Coke Co.
| Decision Date | 25 November 1912 |
| Citation | 151 S.W. 508,167 Mo.App. 169 |
| Parties | CATHERINE GOODE, Respondent, v. CENTRAL COAL & COKE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
B. R Dysart and W. C. Goodson for appellant.
D. R Hughes and Burns, Burns & Burns for respondent.
--Plaintiff's husband a coal miner employed by defendant in one of its mines in Macon county, was killed in the mine by a large rock which fell from the roof of an entry and claiming that his death was caused by negligence of defendant, plaintiff brought this action within six months after the death of her husband to recover the damages sustained by her in consequence of the alleged negligence.
The pleaded cause of action is founded on Sec. 5426, R. S. 1909, and the damages claimed are those allowed in Sec. 5427. The answer in addition to a general denial contains pleas of assumed risk and contributory negligence. Plaintiff prevailed in the circuit court where she recovered a judgment of $ 5000.
The husband of plaintiff, in company with other miners, was engaged in the work of "drawing pillars." In the preceding stages of the work in that part of the mine, the coal had been removed from entries and rooms and thick pillars or walls of coal had been left standing for the purpose, in part, of supporting the roof. Afterward these pillars were removed to obtain the coal in them. Plaintiff and his fellow servants had been working eight days mining the coal in one of such pillars and just before the event in controversy had been loading coal loosened by blasts from the pillar into tram cars.
The parties agree that it was the duty of miners thus employed to attend to the safety of the place in which they were working and the great weight of the evidence is to the effect that defendant owed such miners the duty of reasonable care to keep all other places such as entries and the like in a reasonably safe condition. The death of plaintiff's husband occurred at the noon hour while he and his companions were at lunch. According to the evidence of plaintiff the men had withdrawn from the place of their work to a place perhaps twenty feet distant therefrom and in the entry, and were seated eating their lunches which they had brought with them, when a rock twelve or fifteen feet long, four feet wide and two or three feet thick fell from the roof, killing the husband of plaintiff.
The main dispute in the evidence is over the fact of the position of this rock before its fall. If, as witnesses for plaintiff insist, the rock was not over the place where the men were at work before noon, there is substantial support in the evidence for the conclusion that it was in a part of the roof under the direct supervision and control of defendant, but if, on the other hand, the rock was over the place where the men were working, plaintiff cannot recover since the death of her husband should be ascribed to his own negligence in failing to perform one of the tasks of his employment.
Without going into details we content ourselves with the declaration that the contention of each disputant finds substantial support in the evidence. Counsel for defendant lay great stress on the testimony of certain witnesses, among them, the State Mine Inspector who examined the place after the casualty and who stated that the stain of blood and brains left on the floor showed that the place of the killing was less than five feet from the pillar and, therefore, was under the part of the roof which the miners at work on the pillar were bound to keep in a safe condition. Opposed to this testimony is that of fellow workmen of the deceased who assert that they and the deceased were seated from fifteen to twenty-five feet from the pillar and describe the fallen rock as being in a place where it could not have been had it fallen from a position in the part of the roof that was under the control of the deceased and his fellow laborers. To hold, as counsel for defendant insist we should, that the evidence of plaintiff is opposed to the plain physical facts of the situation would require us to give conclusive effect to the testimony of defendant's witnesses descriptive of such facts and to reject as unworthy of belief the contradictory testimony of unimpeached witnesses who give a vitally different description of them. It is only where the testimony of witnesses is opposed to the plain, undisputed and indisputable physical facts of the occurrence in question that it will be rejected by the court as unworthy of belief. Where the physical facts are disputed and disputable such controversy must go to the triers of fact as one of the issues for them to decide. In the present case the question of whether the rock was over the place where the men had been at work, or was in another place from fifteen to twenty-five feet distant therefrom was a question of fact for the jury to determine.
The learned trial judge committed no error in sending this issue to the jury.
It is argued by counsel for defendant that the petition is so fatally defective it will not support the judgment and our attention is called to the allegation "that the defendant and its officers and agents carelessly and negligently left and permitted the said entry in said mine at and near the point where defendant . . . directed the said James V. Goode to work . . . to be unsafe and dangerous," etc. Counsel say that in this allegation plaintiff has pleaded herself out of court since she expressly states that the unsafe place was the place where the deceased was required to work and the proof shows that it was his own duty to keep that place safe. The well-known rule is invoked that a plaintiff will not be allowed to plead one cause and recover on another especially on one contradictory of that pleaded.
A sufficient answer to this argument is found in other parts of the petition which explain and give definite...
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