Hall v. Manufacturers Coal And Coke Co.

Decision Date02 July 1914
Citation168 S.W. 927,260 Mo. 351
PartiesCOLBY HALL v. MANUFACTURERS COAL AND COKE COMPANY, Appellant
CourtMissouri Supreme Court

Appeal from Knox Circuit Court. -- Hon. Charles D. Stewart, Judge.

Reversed and remanded.

Campbell & Ellison and Higbee & Mills for appellant.

(1) The court erred in admitting evidence of plaintiff's impotency and loss of sexual desire, because not pleaded, and not shown to be a natural result of the injury. Dr. Nunn testified he could not say that the injuries caused impotency. Moore v. Transit Co., 226 Mo. 698. (2) The court erred in overruling the defendant's demurrer to the evidence at the close of plaintiff's case. Plaintiff testified Shaw made the usual inspection of the roof; it was solid. Shaw's test was made in the usual and customary manner and was sufficient, especially as he had the right to assume that plaintiff was an experienced miner. No inference of negligence arises from the fact that the rock fell. The master is not an insurer. Later plaintiff made the same test with the same result. The defect was latent. Shaw's test was made two or three hours before the rock fell. Plaintiff was engaged as a day man, not as a miner, when hurt. His duty was to make dangerous places safe. It was an assumed risk. If he had been an experienced miner he would not have been injured. 26 Cyc. 1139; Stanley v. Railroad, 59 N.W 393. The master is not liable for latent defects. 26 Cyc 1145; Howard v. Railroad, 173 Mo. 524; Bohn v. Railroad, 106 Mo. 429; Beunett v. Lumber Co., 116 Mo.App. 699. (3) The court erred in giving plaintiff's instruction 1. (a) It purports to cover the entire case and ignores the issue of plaintiff's contributory negligence. No instruction was given on that issue. It was equivalent to instructing the jury there was no evidence of contributory negligence. McMahon v. Ex. Co., 132 Mo. 649; Raybourn v. Phillips, 160 Mo.App. 534; Hill v. Drug Co., 140 Mo. 433; Scanlan v. Gulick, 199 Mo. 449. (b) It erroneously predicated plaintiff's right to recover if "the said foreman negligently directed plaintiff to clean up the rock and other debris," etc., without defining or advising the jury what constituted negligence. There was no definition of actionable negligence in any instruction. Raybourn v. Phillips, 160 Mo.App. 551. (4) The court erred in giving plaintiff's instruction 2. Williams v. Coal Co., 127 S.W. 1000. (5) The court erred in giving plaintiff's third instruction. Britt v. Crebbs, 158 S.W. 65. (6) The court erred in giving plaintiff's fourth instruction. It was equivalent to advising the jury that in the opinion of the court there was evidence authorizing them to find that some witness or witnesses for defendant were guilty of perjury. The evidence did not authorize it. Schmidt v. Railroad, 149 Mo. 289; Bank v. Murdock, 62 Mo. 74; White v. Maxey, 64 Mo. 559; McCormick v. Monroe, 64 Mo.App. 201; Sampson v. Railroad, 156 Mo.App. 425. (7) The court erred in giving plaintiff's fifth instruction. (a) It assumes pain and suffering, loss of time and service since plaintiff's recovery. (b) It authorizes the jury to assess plaintiff's damages in their discretion without regard to the evidence.

Fugate & Son and Charles E. Murrell for respondent.

(1) There is no plea of contributory negligence contained in defendant's answer. Ramp v. Met. St. Ry., 133 Mo.App. 700; Cain v. Wintersteen, 144 Mo.App. 1; White v. United Ry. Co., 157 S.W. 593. (2) Appellant's fifth assignment of error is that the court erred in admitting the evidence of plaintiff's impotency because the same is not pleaded and because it was not a natural result of the injuries. The court in the case of Moore v. Transit Co., 226 Mo. 689, holds that all injuries which naturally result from the main or specific injury alleged, may be shown without being specially pleaded and held that impotency could be shown under the above allegation. The petition in the case at bar we contend is broad enough to permit the introduction of plaintiff's impotency. There are many cases in Missouri holding that resulting infirmities from injuries may be shown under a general averment though not specially pleaded, among which are: Fleddermann v. Transit Co., 134 Mo.App. 199; Wilbur v. Railroad, 110 Mo.App. 688; Vancleve v. Railroad, 124 Mo.App. 224. In the Vancleve case plaintiff was permitted to prove and recover for hemorrhages of the lungs and pulmonary consumption under the allegation that the plaintiff's "Breast bone was broken, her chest bruised and crushed and that she was permanently wounded." We contend that plaintiff's impotency is shown by the evidence to be the natural result of the character of injury received by him. Epstein v. Railroad, 143 Mo.App. 135. Appellant complains that the trial court did not sustain its demurrer at the close of plaintiff's case. Under this heading appellant misstates the testimony as shown by the record. Plaintiff does not testify that Shaw made the usual inspection of the roof. Plaintiff says that he sounded the rock right over plaintiff's head in the usual manner, while if the testimony of the witnesses are to be believed this slab of rock nine feet wide and eleven feet long could have been sounded by Shaw and its dangerous condition ascertained had he examined the roof of the room. Shaw's test was not made in the usual and customary manner or he would have sounded other places in the roof other than directly over plaintiff's head. We take this to be a matter of common knowledge. It is not true as stated by appellant that plaintiff made the same test that Shaw did with the same result. There is no evidence that plaintiff tested this rock or the roof in the room on the morning of the injury. The evidence is to the contrary. Neither is it true that Shaw's test was made two or three hours before the rock fell. Finally appellant contends that if respondent had been an experienced miner he would not have been injured; then it is fair to presume that if Shaw had been an experienced and competent foreman that plaintiff would not have been ordered into a place of danger and injured. We submit that plaintiff made a submissible case. Carter v. Baldwin, 107 Mo.App. 217; Lackland v. Coal Co., 110 Mo.App. 634; Swaringen v. Mining Co., 212 Mo. 524; Fisher v. Lead Co., 156 Mo. 479. It is contended by respondent that all of the instructions given on behalf of respondent were erroneous because they ignored the issue of plaintiff's contributory negligence. As heretofore stated the question of contributory negligence is not in this case. There is no allegation in plaintiff's petition that he was in the exercise of ordinary care and no allegation in defendant's answer that respondent was guilty of negligence contributing to his injury. See cases cited under Point (1). This question is decided adversely to appellant in the recent case of White v. United Rys., 157 S.W. 593. Respondent's instructions are in practically the same form as instructions in case of Carter v. Baldwin, 107 Mo.App. 217. The case at bar is on all fours with the Carter case and the court says "The instructions given are in harmony with the view herein expressed and we think correctly present the law to the jury." Lackland v. Coal Co., 110 Mo.App. 634; Swaringen v. Mining Co., 212 Mo. 524; Hammond v. Coal & Coke Co., 156 Mo. 232; Sheperd v. Railroad, 189 Mo. 362; Clippard v. Railroad, 202 Mo. 432.

WILLIAMS, C. Roy, C., concurs. Lamm, C. J., and Woodson, J., dissenting.

OPINION

In Banc

WILLIAMS C.

This is an action to recover damages for personal injuries received by plaintiff while working in defendant's coal mine near Novinger, Missouri. Suit was instituted in Adair county and on change of venue was sent to Knox county where trial was had resulting in a verdict and judgment in favor of plaintiff in the sum of $ 23,666. That portion of plaintiff's petition charging negligence is as follows:

"The defendant negligently, carelessly and recklessly set him to work in one of the rooms in said Mine number 50, known as room number 4 off the 10th west entry off the main south entry, at a place in said room where the rock, earth and other materials forming the roof of said room were in a loose and dangerous condition and liable to fall at any time; and did negligently, carelessly and recklessly fail and neglect to warn or notify the said plaintiff that the roof of said room, at the point and place where plaintiff was compelled to be in order to perform the work as directed, was in a loose and dangerous condition as aforesaid; but said defendant, its agents, employees and mine foreman did carelessly, negligently and recklessly assure this plaintiff that the roof of said room at the place aforesaid was in a safe and secure condition, and this plaintiff believing said foreman possessed superior knowledge of said roof, relied upon said statement and assurance and set about the work as directed; and this defendant had negligently, carelessly and recklessly failed and neglected to furnish and provide a safe, competent and proper man in charge of said room, and did negligently, carelessly, and recklessly fail and neglect to furnish and provide safe, competent and proper men in charge of said mine as mine foreman, and did negligently, carelessly and recklessly fail and neglect to furnish the said plaintiff with a reasonably safe, sufficient and proper place in which to perform his duties, and did negligently, carelessly and recklessly fail and neglect to warn or notify the said plaintiff of the dangers of working in said room, this plaintiff being then and there an inexperienced miner, and ignorant by reason thereof of the dangers lurking in said roof of said mine, which said facts the defendant well knew or by the exercise of ordinary care could have known."

The...

To continue reading

Request your trial
3 cases
  • Guthrie v. Holmes
    • United States
    • Missouri Supreme Court
    • 17 Noviembre 1917
    ... ... Carmin, 255 Mo. 62; Finnegan v ... Railway, 244 Mo. 653; Hall v. Coal Co., 260 Mo ... 351; Gilky v. Woodmen, 178 S.W. 875; Merritt ... ...
  • Kilroy v. Charles L. Crane Agency Company
    • United States
    • Missouri Court of Appeals
    • 6 Enero 1920
    ... ... Pardee, 220 N.Y. 431, 116 N.E. 78; Cronecker v ... Hall, 105 A. 213 (N. J.); Rose v. Balfe, 223 ... N.Y. 481; Lotz v. Hanlon, ... defendant is negligent in any respect. Hall v. Coal & Coke Co., 260 Mo. 531, 168 S.W. 927; Greenstein v ... Foundry Co., ... ...
  • Schwartz v. National Accident Society
    • United States
    • Missouri Court of Appeals
    • 2 Diciembre 1924
    ... ... 286; DeGonia v ... Railroad Co., 220 Mo. 564; Hall v. Coal ... Company, 260 Mo. 351; State v. Ellison, 270 Mo ... 645; ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT