Fell v. Rich Hill Coal Minn. Co.
| Citation | 23 Mo.App. 216 |
| Parties | HARRISON FELL, Defendant in Error, v. THE RICH HILL COAL MINING COMPANY, Plaintiff in Error. |
| Decision Date | 08 November 1886 |
| Court | Court of Appeals of Kansas |
ERROR to Bates Circuit Court, HON. JAMES B. GANTT, Judge.
Affirmed.
Statement of case by the court.
This is an action to recover damages for personal injuries. The defendant is a corporation. The plaintiff was working as a miner in one of defendant's coal shafts. The petition alleges that the injury resulted from defendant's negligence in not furnishing and having in charge of the engine, used in lowering into and hoisting from the coal pit the men employed in digging coal, a competent and careful engineer to operate said engine, and in failing to have the cage so used for letting the men down and bringing them up from the pit sufficiently covered with boiler iron, and in failing to have the drum to said cage sufficiently provided with brakes to prevent accident in case of giving away of machinery, and neglecting and failing to provide said cage with spring catches to prevent the consequence of the cable breaking or loosening, or disconnecting of machinery. The petition alleges that while the plaintiff was descending into the coal pit in said cage, through the incompetency and carelessness of defendant's engineer in managing the machinery, and the absence of said catch, the cage fell rapidly, greatly injuring the plaintiff, breaking his leg dislocating his ankle, and otherwise wounding him. He prayed judgment for ten thousand dollars.
The answer was a general denial. At the trial, had before a jury the plaintiff's evidence tended to show that one Jones was the regular engineer of defendant in charge of the engine employed in running the cage, and other machinery about the premises; that at the time of the accident, without plaintiff noticing who was in charge of the engine, the said engineer had absented himself from his post of duty, and placed in charge his fireman. That while descending in the cage it suddenly went very rapidly, carrying plaintiff to the bottom with such force that he was injured in the manner stated in the petition. The fireman in charge of the engine gave as a reason for the mishap that " he went to fire and steam stopped the engine." The evidence, without contradiction, showed that the cage was not provided with spring catches, and that such catches were for the purpose and so arranged that in case the cable broke, of machinery became disconnected or loosened, they clamped on sledges and stopped the cage. The evidence was that had these catches so been on the cage they would have arrested the descent of the cage, and prevented the injury to plaintiff. The evidence further showed that defendant's superintendent had previous to the time of the accident, been notified by the county inspector of coal mines of the absence of such catches and requested to put them on.
The defendant put in evidence a contract previously entered into between it and one McCombe, by which it was stipulated that said McCombe was to sink a shaft in this mine for coal, to dig and deliver to defendant so much coal per month, at an agreed price; said McCombe was to furnish tools, labor and necessary materials and work in opening the shafts, entries, drifts, etc., for using, operating and keeping said mine in repair. The defendant was to furnish an engine and all necessary apparatus and appliances for hoisting coal out of the shaft, and an engineer to operate the engine, and iron for tracks, all materials, such as shafting, timbering, ties, props, aprons, screens, caps, etc.; to erect a blacksmith shop and forge, and furnish the same. McCombe hired and paid the hands.
The jury returned a verdict for the plaintiff, assessing his damages at one thousand eight hundred dollars. Defendant has appealed.
DEARMOND & SMITH, for the plaintiff in error.
I. The court erred in allowing plaintiff to amend his petition at the trial.
II. Instruction numbered four, given of the court's own motion, is not the law, and is not based upon or warranted by the evidence. This refers to the question of ownership and the providing of safe machinery. Gibson v. Ry. Co., 46 Mo. 168; Harper v. Ry. Co., 47 Mo. 571; Cousins v. Ry. Co., 66 Mo. 573; Sherman v. Ry. Co., 72 Mo. 65; Flynn v. Ry. Co., 78 Mo. 212; State v. Wheeler, 79 Mo. 336; Heirn v. McCaughan, 32 Miss. 17. It misconstrues the contract between McCombe and defendant. Lindley on Partnership [4 Ed.] 2-4; Musser v. Brink, 68 Mo. 242, and 80 Mo. 350; Donnell v. Harshe, 67 Mo. 170; Wood's Master and Servant [1 Ed.] sections 311, 215, 317; Russell v. Columbia, 74 Mo. 492; Hilsdorf v. St. Louis, 45 Mo. 98; Fink v. Mo. Fur Co., 82 Mo. 281; 2 Thomp. Neg., sect. 21, p. 899; Ardesco Oil Co. v. Gibson, 63 Pa.St. 163; Moore v. Sanborn, 2 Mich. 519. It erroneously predicates plaintiff's right of recovery upon his being " ignorant of such defects at the time" of the accident. Mathews v. Elevator Co., 59 Mo. 474; Cagney v. Ry. Co., 69 Mo. 416; Porter v. Ry. Co., 71 Mo. 66; Flynn v. Ry. Co., 78 Mo. 204. No definition is given of " willful" or of " " direct damages." Stewart v. Clinton, 79 Mo. 603.
III. The other instructions for plaintiff are abstractions, or concerning subjects on which there is no evidence. Another instruction given for plaintiff makes mental pain and suffering an element of damages without its being pleaded. Brown's Legal Maxims [7 Ed.] 654.
IV. Defendant's instructions should have been given.
V. The verdict is against the evidence, and weight of evidence, and is against the law, as declared.
VI. The motion for a new trial should have been sustained.
M. L. BROWN and A. A. HARRIS, for the defendant in error.
I. The court committed no error in allowing the amendment to the petition at the trial, no demurrer thereto having previously been filed. Merrell v. St. Louis, 83 Mo. 244; Henderson v. Henderson, 55 Mo. 534; sect. 3567, Rev. Stat.; Ensworth v. Barton, 67 Mo. 622; Webber v. Hannibal, 83 Mo. 262.
II. The duty to furnish the safety appliances, and persons, being cast by express statute, plaintiff in error cannot escape liability by contracting out the work of mining the coal. Wood's Master and Servant (1877) sect. 321; Thomp. Neg., sect. 21, p. 904; Speed v. Ry. Co., 71 Mo. 303; Reed v. Ry. Co., 60 Mo. 199; Currier v. Lowell, 16 Pick. (Mass.) 170; Reynolds v. Hindman, 32 Iowa 140; Davis v. Ry. Co., 121 Mass. 134; Ry. Co. v. Currier, 19 Ohio St. 1; Farnham v. Ry. Co., 55 Pa.St. 62; Ry. Co. v. Werner, 49 Miss. 725.
III. The owner is liable to the party injured when the injury results directly from the acts which the contractor is authorized to do. Defendant is liable under the express terms of its contract with McCombe. Ingersoll v. Ry. Co., 8 Allen (Mass.) 438; Ry. Co. v. Woodby, 85 Ill. 372; Water Co. v. Ware, 16 Wall. (U. S.) 566; Wood's Master and Servant (1877) sect. 316; Thomp. Neg., sect. 28, p. 906; Whar. Neg. 227.
IV. Defendant had the employment and control of the engineer. If the engineer placed the fireman in charge of the engine, this was an act within the scope of his employment, and if any injury resulted by and from his negligence and incompetency, defendant is liable. Wood's Master and Servant, sect. 308; Althorf v. Wolfe, 22 N.Y. 355; Moore v. Ry. Co., 85 Mo. 588; Wichtrecht v. Fassnatcht, 17 La.Ann. 166. McCombe was not an independent contractor so as to hold defendant exempt. Speed v. Ry. Co., 71 Mo. 903; Thomp. Neg., sect. 40, p. 913; Whitney v. Clifford, 46 Wis.; 8 Rep. 34; Tiffin v. McCormack, 34 Ohio St.; 9 Rep. 21. But even if plaintiff was an employe of the contractor, the engineer was the admitted employe of the defendant. The relation of fellow servant did not exist between said engineer and plaintiff, and under the authorities, defendant is liable. Thomp. Neg., sect. 41, p. 1040; Speed v. Ry. Co., 71 Mo. 303; Cayzer v. Taylor, 10 Gray (Mass.) 274.
V. Defendant had notice, through his superintendent, and its agent (McCombe), of the defective condition of the machinery, and it was not incumbent on plaintiff to notify them, or to quit work, if he had so known it. Conroy v. Vulcan Iron Works, 62 Mo. 35; Porter v. Ry. Co., 71 Mo. 66; Coal Co. v. Taylor, 81 Ill. 590. Operating the mine with defective appliances, and the unfit service was wilful negligence. Coal Co. v. Taylor, supra; Braxton v. Ry. Co., 77 Mo. 458; Walsh v. Trans. Co., 52 Mo. 534. Where the defective machinery may be used by exercise of reasonable care, the servant does not assume the risk. Conroy v. Iron Works, 62 Mo. 35; Flynn v. Ry. Co., 78 Mo. 195; Walsh v. Transp. Co., 52 Mo. 434.
VI. Mental suffering may be recovered, although it is not alleged. Thomp. Neg., sect. 5, p. 1250; Wright v. Compton, 53 Ind. 337; Cook v. Ry. Co., 19 Mo.App. 329.
VII. The contract with McCombe is not a lease, and can have the effect only to put McCombe in charge as the person having the care and management of the mine on behalf of defendant. Martindale on Conveyances, 255; Whitney v. Clifford, supra; City of Tiffin v. McCormack, supra.
I. The principal contention of defendant, raised at this bar, is, that the relation of master and servant did not exist between defendant and plaintiff, and, therefore, the doctrine of respondeat superior does not apply. It is urged that McCombe was an independent contractor, under the mining company; that he hired, paid and controlled the men employed in the shaft, without any control or supervision on the part of defendant over this matter.
The conclusion drawn from this premise would follow but for another important fact in the record. The imputed negligence of defendant consists in two independent facts: the negligence of defendant in providing an unsafe cage for lowering into and...
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