56 S.W. 1091 (Mo. 1900), Hamman v. Central Coal & Coke Company

Citation:56 S.W. 1091, 156 Mo. 232
Opinion Judge:BURGESS, J.
Attorney:Perry & Crain and Graves & Clark for appellant. Thos. J. Smith, A. W. Thurman and W. O. Atkeson for respondent.
Judge Panel:In Division Two: BURGESS, J. Gantt, P. J., concurs; Sherwood, J., concurs with the exception of what is said with respect to the assumption of risks by plaintiff's husband, from which he dissents. In Court In Banc: Gantt, C. J., Brace and Valliant, JJ., concurring in said opinion; Sherwood and Ma...
Case Date:May 08, 1900
Court:Supreme Court of Missouri

Page 1091

56 S.W. 1091 (Mo. 1900)

156 Mo. 232




Supreme Court of Missouri, Second Division

May 8, 1900

Appeal from Bates Circuit Court. -- Hon. W. W. Woods, Special Judge.


Perry & Crain and Graves & Clark for appellant.

(1) This case should have been taken from the jury upon defendant's instruction in the nature of a demurrer to the testimony, interposed at the close of plaintiff's case, and re-interposed at the close of the whole case. The danger was obvious and impending, and was known to defendant for six days prior to the accident. Fugler v. Bothe, 117 Mo. 475; Watson v. Coal Co., 52 Mo.App. 366; Lucey v. Hannibal Oil Co., 129 Mo. 32; Devit v. Railroad, 50 Mo. 302; Steinhauser v. Spraul, 127 Mo. 541; Aldridge v. Furnace Co., 78 Mo. 559; Thomas v. Railroad, 109 Mo. 187; Alcorn v. Railroad, 108 Mo. 81; Gleason v. Mfg. Co., 94 Mo. 201; Price v. Railroad, 77 Mo. 508; Smith v. Railroad, 69 Mo. 32. (a) The deceased had the right to rely upon the promises of the master to remedy the defect by furnishing props, yet, having continued his employment under a known dangerous roof, for an unreasonable time, he will be deemed to have waived his objection, and to have assumed the risk. 2 Bailey's Personal Injuries, sec. 3106; Stephenson v. Duncan, 73 Wis. 404; J. A. & N. Railroad v. Velie, 26 N.E. 1086; G. C. & S. F. Railroad v. Brentford, 79 Tex. 619; Beach on Contrib. Neg. (2 Ed.), sec. 371; Davis v. Graham, 29 P. 1007; Rush v. Railroad, 12 P. 582. (b) All the defendant had to do was to prove knowledge of such facts upon the part of the deceased as would suggest the danger. Hill v. Drug Co., 140 Mo. 440. (c) Where the danger is glaring and open, the servant acts at his peril, notwithstanding previous promises upon the part of the master. 2 Bailey's Personal Injuries, sec. 3117; Conroy v. Vulcan Iron Works, 62 Mo. 35; Railroad v. Watson, 114 Ind. 20. (d) Deceased being an old and experienced miner was in law bound to call to his use his experience in determining the danger of his position, and if such experience would bring to him knowledge of the danger he is presumed to have had such knowledge. Watson v. Coal Co., 52 Mo.App. 366; Quick v. Minn. Iron Co., 47 Wis. 361; Anderson v. Clark, 29 N.E. 589; 1 Bailey's Personal Injuries, sec. 700; Miss. Riv. Logging Co. v. Schneider, 74 F. 195. (2) Section 7074, R. S. 1889, amended by laws of 1891, page 182, is a statute in pari materia, with sections 4425, 4426 and 4429, being three sections of the general damage act. Limitations of the action is prescribed in each. In the former the persons who can sue and recover are classified, and the time fixed within which the action can be brought by each class. In the latter the same classes of persons are allowed to sue, but they are not classified as to time and otherwise, as in the former. The statutes are clearly in pari materia, and must be construed together. Sutherland on Stat. Const., sec. 283; Black on Interp. of Laws, pp. 204-211; St. Louis v. Howard, 119 Mo. 41; State ex rel. v. Klein, 116 Mo. 259; Pitt v. Bishop, 53 Mo.App. 600; K. C. Press Brick Co. v. Barker, 50 Mo.App. 60. If such statutes are in pari materia, the petition is fatally defective in failing to aver that there are no minor children. The action is filed more than six months after the death of deceased and date of injury. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131. (3) The act of 1891 is unconstitutional, in this that it is a special law permitting the widows of miners to recover to the extent of $ 10,000, while under the general damage act, prescribing the damages in actions for tort, no other widow can recover more than $ 5,000. This proposition was not passed upon in DeBoth v. Mining Co., 141 Mo. 497. The law is partial, invidious and unequal, and should not be upheld. Sutherland on Stat. Const., sec. 119.

Thos. J. Smith, A. W. Thurman and W. O. Atkeson for respondent.

(1) The act of 1891, Laws 1891, p. 182, amendatory of section 7074, R. S. 1889, is in no way in conflict with the provisions of section 53, article IV of the Constitution, as it applies to all of a given class. Luther v. Saylor, 8 Mo.App. 424; Durant v. Coal Co., 97 Mo. 62; Perkins v. Railroad, 103 Mo. 56; Murnane v. St. Louis, 103 Mo. 492; Equitable, etc., Society v. Clements, 140 U.S. 226. (2) Under the provisions of the mining laws of this State the doctrine of contributory negligence can not be invoked, since the statute not only makes it the duty of the owner or operator of a coal mine to furnish props when requested, but also in express terms, provides that he or it shall be liable for all damages that result from such failure. R. S. 1889, sec. 7074; Laws 1881, 165; Laws 1887, 218; Laws 1891, 182; Girard v. Coal Co., 52 Ill.App. 69; Litchfield Coal Co. v. Taylor, 81 Ill. 590; Quackenbush v. Railroad, 62 Wis. 411; Burton v. Railroad, 30 Mo. 372; Calvert v. Railroad, 34 Mo. 242; Powell v. Railroad, 35 Mo. 457; Edwards v. Railroad, 66 Mo. 567; Young v. Railroad, 79 Mo. 336; Rhea v. Railroad, 84 Mo. 345. (3) The highest office any government can perform is to protect and preserve the lives of its citizens. It is the law of self-preservation, which is said to be the first law of nature. All laws enacted for such purposes should be liberally construed so as to effectuate this benign purpose. Fell v. Coal Co., 23 Mo.App. 216; Durant v. Coal Co., 87 Mo. 62. (4) But conceding even that the common-law doctrine of contributory negligence could be invoked in this case, still the respondent was entitled to have that question submitted to the jury. (a) The law will presume unless the contrary is established that deceased was at the time of the accident in the exercise of reasonable care and prudence. Buesching v. Gaslight Co., 73 Mo. 219; Schlereth v. Railroad, 96 Mo. 509; Soeder v. Railroad, 100 Mo. 673. (b) The evidence does not show that the danger under unpropped roof was so threatening and immediate as that a prudent man could not conclude that with care and caution he might safely work under it. Under these circumstances deceased was not guilty of contributory negligence. Hamilton v. Coal Co., 108 Mo. 375; Huhn v. Railroad, 92 Mo. 440; O'Melia v. Railroad, 115 Mo. 218; Holloran v. I. & F. Co., 133 Mo. 276; Soeder v. Railroad, 100 Mo. 681...

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