23 Mo.App. 216 (Mo.App. 1886), Fell v. Rich Hill Coal Minn. Co.

Citation:23 Mo.App. 216
Opinion Judge:PHILIPS, P. J.
Party Name:HARRISON FELL, Defendant in Error, v. THE RICH HILL COAL MINING COMPANY, Plaintiff in Error.
Attorney:DEARMOND & SMITH, for the plaintiff in error. M. L. BROWN and A. A. HARRIS, for the defendant in error.
Case Date:November 08, 1886
Court:Court of Appeals of Missouri
 
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Page 216

23 Mo.App. 216 (Mo.App. 1886)

HARRISON FELL, Defendant in Error,

v.

THE RICH HILL COAL MINING COMPANY, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

November 8, 1886

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...

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