Anderson v. Western Coal & Mining Company
| Decision Date | 31 May 1909 |
| Parties | AUGUST ANDERSON, Respondent, v. WESTERN COAL & MINING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.
AFFIRMED.
Judgment affirmed.
Martin L. Clardy and Scott & Bowker for appellant.
(1) The master is required to exercise ordinary and reasonable care and provide a reasonably safe place for his servants to work. Sinburg v. Falk Co., 98 Mo.App. 546; Browning v Caston, 107 Mo.App. 59; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Bennett v. Lumber Co., 116 Mo.App. 699. (2) A master is not an insurer of the safety of appliances furnished by him nor of the place furnished his servant to work in, but is only bound to reasonable care in their selection and their inspection if needed, and before the servant can recover he is bound to show the dereliction of the master's duty in that regard. Brown v. Land & Lumber Co., 65 Mo.App. 165; Kelly v. Stewart, 93 Mo.App. 60. (3) An accident which an experienced man in that business could not, with ordinary care, have seen or guarded against, is a hazard incident to the business which every man engaged in assumes for himself. Beasley v Transfer Co., 148 Mo. 421. (4) The master is only required to adopt such reasonable methods and apply such reasonable tests as are likely to discover defects if they exist. Guthridge v. Railroad, 105 Mo. 527. (5) The master is guilty of no want of ordinary care and hence is not responsible for injury, if he behaves, everything considered, as a man with prudence would have behaved. Rodgers v. Printing Co., 103 Mo.App. 689. (6) If any injury occurs which a prudent man, all the circumstances considered, would have been unlikely to anticipate, it is referable to the category of inevitable accidents. Rodgers v. Printing Co., 103 Mo.App. 689. (7) Before the master is liable for defects in the appliances he must know it or be able to know it by the exercise of ordinary care; negligence cannot be assumed from the mere fact of the injury, nor will such facts send the case to the jury. Glasscock v. Dry Goods Co., 106 Mo.App. 657; Robbins v. Mining Co., 105 Mo.App. 82. (8) It devolves on the plaintiff to prove that defendant is guilty of negligence, and the mere fact of the injury is no evidence of negligence. Kelly v. Stewart, 93 Mo.App. 47; Glasscock v. Dry Goods Co., 106 Mo.App. 657; Beckman v. Brewing Co., 98 Mo.App. 555; Robbins v. Mining Co., 105 Mo.App. 78.
Richard Field, with whom is Alexander Graves, for respondent.
(1) The evidence was abundant and uncontradicted that Frank Snell was the foreman in charge of crew and of the work, with power to discharge respondent's son if he disobeyed orders of Snell; and appellant finally admitted as much. Thus he was appellant's vice-principal in the premises. Smith v. Kansas City, 125 Mo.App. 155; Smith v. Car Co., 122 Mo.App. 616, 619; Lacklan v. Coal Co., 110 Mo.App. 638; Donnely v. Mining Co., 103 Mo.App. 350; Strode v. Conkey, 105 Mo.App. 14; Banc v. Irwin, 172 Mo. 317.
This suit is brought by the father of a minor son to recover damages sustained by him in consequence of personal injuries inflicted on the son. Verdict and judgment were for plaintiff and the cause is here on the appeal of defendant. The only questions urged by defendant are those arising from its contention that the court erred in not peremptorily instructing the jury to return a verdict in its favor.
At the time of the injury, March 12, 1906, the boy, Ernest Anderson was employed as a shoveler in a coal mine operated by defendant. The cause of action alleged in the petition is negligence of the defendant in failing to exercise reasonable care to furnish its servant a reasonably safe place in which to work. The defenses pleaded in the answer are a general denial and pleas of contributory negligence and assumed risk. Ernest was fourteen years old and was employed as one of a crew to operate an electric mining machine. He had not worked before in a mine where machinery of that kind was used but had worked at coal mining for sometime. The machine weighed about twenty-seven hundred pounds and was used in cutting out coal. The crew consisted of a foreman and three men. It was the duty of Ernest to shovel coal cut by the machine. The evidence of plaintiff shows that it was the duty of the foreman to inspect the roof and to keep it in a reasonably safe condition for the operation of the machine under it. During the forenoon of the day of the injury all of the men except Ernest had tested the roof which was of slate and found it somewhat loose. One of them called the foreman's attention to its condition, whereupon the foreman tested it. The men worked until noon and when they resumed work after lunch the foreman again tested the roof and told the men "it would hold up, that he thought we could get through." He did not stop to knock down or prop the loosened material. The men went on with their work and in about fifteen minutes an extensive but thin slab of slate fell from the roof at the place where the tests had been made and Ernest was injured. The manner of making the tests was to sound the roof with pick or hammer. If it sounded hard, it was considered to be in a safe condition, but a hollow sound would indicate that material...
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