Abbott v. Marion Min. Co.

• Decision Date: 08 May 1905
• Citation: 87 S.W. 110,112 Mo. App. 550
• Parties: ABBOTT v. MARION MIN. CO.
• Court: Missouri Court of Appeals

87 S.W. 110

112 Mo. App. 550

ABBOTT v. MARION MIN. CO.

Kansas City Court of Appeals. Missouri.

May 8, 1905.

MASTER AND SERVANT—MINES AND MINING— INJURIES TO SERVANT—ACTION—TRIAL — INSTRUCTIONS — DEPOSITIONS—IRREGULARITY.

1. Where defendant's counsel was present when the deposition of one of plaintiff's witnesses was taken, and knew that it was taken by the stenographer during the absence of the notary, and that there was no stipulation for such irregularity, but made no motion to suppress the deposition, although it was filed several days before trial, an objection to its admissibility at trial was too late.

2. A mine owner is not liable for injuries to a servant from the dangerous condition of the roof of the mine, unless he knew or might have known of such dangerous condition long enough before the injury to have repaired it.

3. In an action for injuries alleged to have been caused by the dangerous condition of the roof of defendant's mine, in which there was some evidence that it was not practicable to timber the mine at the place where plaintiff was injured, an instruction assuming that defendant was negligent in failing to timber the mine was error.

4. In an action by a servant for personal injuries, failure of the instructions to refer to the question of contributory negligence was error.

5. In an action for injuries to a miner by the falling of rock from an alleged defective roof, defendant was entitled to an instruction that if it trimmed the roof after firing the last shot before plaintiff's injury, and if trimming the roof after each shot was the method adopted by defendant to protect its employés, and made the place where plaintiff was injured reasonably safe, and defendant had no knowledge that rock was likely to fall, the verdict should be for defendant.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by Oscar Abbott against the Marion Mining Company. From a judgment for plaintiff, defendant appeals. Reversed.

Thomas & Hackney, for appellant. H. S. Miller and Cole, Burnett & Moore, for respondent.

ELLISON, J.

The plaintiff was a laborer in defendant's mine in Jasper county, and received the personal injury for which he sues by a rock falling upon him from the roof of the mine. He recovered judgment in the trial court.

Plaintiff had the deposition of one of his witnesses taken by a notary public, and it was read at the trial, over defendant's objection. The ground of the objection was that the witness' testimony was taken down by a stenographer during the absence of the notary, and that no stipulation for such irregularity was asked or given. It appeared that defendant's attorney was present during the examination of the witness, but took no part therein. The deposition was filed in court on the first day of the session, but the motion to suppress was not made until the case was called for trial, several days afterwards. The trial court overruled defendant's motion, and assigned as ground therefor defendant's neglect to make his objection earlier. In this the court did not err, although there was no rule of court prescribing when motions to suppress should be filed. In fairness to plaintiff, the motion should have been made sooner, since plaintiff might then have been able to have procured the attendance of the witness, or, at least, could have asked that the cause be continued, and thus have avoided the trouble and expense of preparing for trial. "If the deposition was in any respect open to irregularities, the motion to suppress it, under the circumstances, came too late. Such motion should be made before the case is called for trial, so as to afford opportunities to retake the testimony or correct defects in the taking of the deposition." Bibb v. Allen, 149 U. S. 481, loc. cit. 488, 489, 13 Sup. Ct. 950, 37 L. Ed. 819; Howard v. Stillwell, 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147. And so the Supreme Court of this state has discountenanced unwarranted delay in making such motions. Hoyberg v. Henske, 153 Mo. 72, 55 S. W. 83; Holman v. Bachus, 73 Mo. 51.

It appears that plaintiff was engaged in working defendant's mine on the stope, throwing the dirt down to a platform, where it could be taken away or disposed of by others. This work was called "brunoing" by the miners, and p...