Rice v. Smith
| Decision Date | 24 December 1902 |
| Citation | 71 S.W. 123,171 Mo. 331 |
| Parties | RICE, Appellant, v. SMITH et al |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Jos. D. Perkins, Judge.
Reversed and remanded.
Redding & Owen for appellant.
(1) The defendants were operating and controlling the mine at the time they made the contract with Raynes to dig the ore and put it in the tub for one-half of the proceeds; they did not release full control of the mine to Raynes, the contract was for their mutual benefit, they were contractors with each other, and the defendants being the parties furnishing the instrumentalities (in this case the place where plaintiff's husband was required to work) were bound to furnish Raynes and his employees a reasonably safe place in which to do the work. Roddy v. Railroad, 104 Mo 248. (2) The law imposes a duty upon the party furnishing an appliance, machine, vehicle, place or structure of any kind to be used in his occupation, to exercise prudence to see that the thing he furnishes is not imperfect or so out of order as to cause injury to persons thus employed. Sykes v. Railroad, 88 Mo.App. 204. (3) Defendants, soon after the death of plaintiff's husband, employed persons to timber the ground where he was killed; this was evidence of their duty to keep the ground in repair and should have been submitted to the jury. Woods v. Railroad, 51 Mo.App 501; Mitchell v. City of Plattsburg, 33 Mo.App. 556; Brennan v. St. Louis, 92 Mo. 482; Rusher v. City of Aurora, 71 Mo.App. 424.
Frank L. Farlow for respondents.
(1) In this case it was not shown that the relation of master and servant existed between the plaintiff's husband and defendants, and the defendants are not liable. Mound City Paint Co. v. Conlon, 92 Mo. 221. Appellant is in error in saying that defendants controlled this mine, for the evidence of Raynes shows that he was in full charge of the ground for himself and not for defendants. The appellant seems to rely upon the case of Roddy v. Railroad, 104 Mo. 234. This case was before the trial court, and is more favorable to the defendants than to plaintiff. The defendants did not furnish the place in which plaintiff's husband was working. Raynes under his contract had been in charge for weeks, and it is common knowledge that the place the conditions and the surroundings would change every day; therefore defendants did not furnish the plaintiff's husband the place in which to work as contended by plaintiff. While the defendants furnished to Raynes some of the tools with which to do the mining, yet no complaint is made of the tools, but that the place was dangerous; and if it was so, the plaintiff's husband and Raynes who had employed him made it so, and with which defendants had nothing to do. Under the evidence in this case the plaintiff can not recover, and we cite as an authority in point, Roddy v. Railroad, 104 Mo. 234. (2) The defendants had no authority or control over Raynes or his employees -- in the condition in which they kept the drift, how often it was trimmed, or in what manner; this was all left to Raynes, the contractor, and his employees; and unless the defendants had the right to direct the work, they can not be held liable for the act of Raynes, the contractor, even though he was guilty of negligence towards his employees. Troth v. Norcross, 111 Mo. 635. (3) Raynes was an independent contractor and was to cut the ore and rock and hang it on the rope at the bottom of the shaft and defendants were to hoist and clean the ore, and there was no agreement or stipulation as to the manner in which he was to run the drifts or cut the ore, and the defendants are not liable to plaintiff, even assuming that Raynes was guilty of negligence towards the plaintiff's husband, Rice. Raynes only represented the will of the defendants as to the result of his work and not as to the mode, manner or means by which he accomplished it. Fink v. The Missouri Furnace Co., 82 Mo. 276; Burns v. McDonald, 57 Mo.App. 600.
Suit for damages for the death of plaintiff's husband which she alleges was caused by the negligence of defendants. The petition avers that the defendants were licensees of a mine and in control of the same, mining lead and zinc ore; that the plaintiff's husband was working in a drift in the mine when a boulder fell from the roof of the drift, struck him on the head and killed him; that the mine was in an unsafe condition, in that for a long time prior to the accident large stones, boulders and dirt had continually been sloughing off and falling from the sides and roof of the shaft and drift, and that this condition was known to defendants or would have been known to them if they had exercised ordinary care. The petition states that one Raynes was engaged with the defendants in operating the mine under an agreement to the effect that he was to dig and mine the ore in the drift, put it in the tub and hook the tub to the hoisting rope, then his part of the work was done, and the defendants were to hoist the ore, clean it and sell it, and divide the proceeds with Raynes; Raynes was to employ the miners to do the work under ground and pay them; the defendants were to do the rest. The plaintiff's husband was employed by Raynes and was at work for him in the drift when the boulder fell on him.
The answer was a general denial, a plea of contributory negligence and a special plea to the effect that plaintiff's husband was not in their employ nor under their control, but exclusively in the service of Raynes.
Upon the trial the plaintiff's evidence tended to show the following, viz.: That defendants were licensees of the mine in question and had sometime before this event operated it. That at the time of the accident it was being operated under a contract between defendants and Raynes to this effect Raynes at his own expense was to do all that was necessary to be done under ground, to mine the ore, put it in the tub and attach the tub to the hoisting apparatus; defendants were then to see to the hoisting it, preparing it for sale and selling it, and Raynes for his share was to have half the proceeds. Raynes was to have full control of all operations under ground. He was a witness for plaintiff and this is how he understood the contract: ...
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