Barron v. Missouri Lead & Zinc Co.

• Decision Date: 24 February 1903
• Citation: 72 S.W. 534,172 Mo. 228
• Court: Missouri Supreme Court
• Parties: BARRON v. MISSOURI LEAD & ZINC CO.

72 S.W. 534

172 Mo. 228

BARRON v. MISSOURI LEAD & ZINC CO.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

MINES AND MINING—SHAFTS — PRECAUTIONS AGAINST INJURIES — STATUTES — APPLICATION—DEATH—ACTIONS—PETITION.

1. Rev. St. 1899, § 8811, provides that every owner, agent, or operator of every mine operated by shaft shall provide suitable means for signaling, and cages covered with boiler iron for the safety of persons descending and ascending the shaft, and requires that guides shall be placed in the sides of the shaft, with brakes, and that such cage shall be fitted with spring catches, to prevent accidents in consequence of the cable breaking, etc. Held, that a petition thereunder for decedent's death, alleging negligence in the selection of the material for the construction of the derrick and hoist, and in failing to put a roof over the derrick, and in the construction of the brake on such derrick, did not allege negligence in any act required by the statute; it being enacted for the protection of persons conveyed up and down the shaft, and having no application to a hoister, whose business it was to run the hoisting appliance.

Appeal from circuit court, Jasper county; Jos. D. Perkins, Judge.

Action by Rachel Barron against the Missouri Lead & Zinc Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

On October 22, 1898, this suit was commenced in the circuit court of Jasper county, Mo., by filing with the clerk of said court the following petition: "Plaintiff, for a cause of action against the defendant, states: That on and before June 26, 1898, the defendant was a corporation, duly incorporated under the laws of the state of Missouri as a business corporation, and was then and there engaged in mining for lead and zinc ores and other valuable substances on its mining land near the city of Joplin, and in said county, and was engaged in digging and raising lead ore and zinc ore and waste from its mines and drifts, and lowering and hoisting persons employed by it and into and out of its said mine by means of a rope, pulley, and derrick by horse power, known as a `horse hoister'; and that on the said 26th day of June, 1898, Ira D. Barron, son of plaintiff, was in the employ of the defendant, as its servant, as hoisterman, at said shaft, running its said hoister, receiving the said ore and waste at the mouth of the shaft, hoisting it to the surface of the earth by said hoister, and lowering the empty tubs to be refilled and hoisted, and lowering and hoisting persons in its employ into and out of its said mine. That it became and was the duty of defendant, in order to make the said derrick safe in hoisting from said mine, to construct said derrick of sound and strong timber. That the defendant negligently failed to construct said derrick of sound timber, but the said timber was unsound, by reason of age, and was not heavy enough to make the same safe; and that the same was full of nail holes, which weakened the said timber, and was full of knots, which made the said timber unsafe, and insufficient to support the weight of the tubs, when loaded, in case of a sudden jerk or fall of the tub any distance. That it was the duty of the defendant, in order to render the said hoister safe in rain, to have the said derrick covered or roofed, so as to keep the rain from coming on the brake, but the said defendant negligently failed to put any roof or covering over said derrick, so as to keep the rain from coming onto the brake of said hoister; and that it was the duty of the defendant to construct the brake so as to make the same reasonably safe, but that the said brake was improperly constructed, and the defendant was negligent in the construction of said brake, and the brake was improperly placed, and the said defendant was negligent in the placing of said brake in such a way that it could not be handled, and could not be readily set, so as to stop the sudden descent of the loaded tub; and that on the 26th day of June, 1898, while the said Ira D. Barron was so in the employ of the defendant, as its servant, as hoisterman, at said hoister and mine, and engaged in hoisting a loaded tub from said mine, on account of the negligent construction of said derrick and hoister, and the negligence of the defendant in failing to put a roof over said derrick, it then and there being a rainy day, said brake being wet therefrom, and on account of the rotten and defective and insufficient timber of said derrick, and the nail holes and knots therein, and on account of the defective construction of the said brake, the said brake being defectively and negligently placed on said derrick, gave way, and by force of the weight of the tub the timbers of said derrick were thrown down with great force, and struck the said Ira D. Barron, and knocked him into said shaft; and that he fell to the bottom of said shaft, a distance of one hundred and ten feet, and was instantly killed. That the said Ira D. Barron was a son of plaintiff, and that he was, at the time of his death, a single man, never having been married; and that he left no widow, lineal heirs, or adopted children; and that the plaintiff, before and at the time of the loss of her said son, Ira D. Barron, was dependent for support upon the said Ira D. Barron. Wherefore plaintiff states that by reason of the carelessness and negligence of the defendant, as aforesaid, and the death of her said son, occasioned by said carelessness and negligence of the defendant, as aforesaid, she is damaged in the sum of ten thousand dollars, and that a cause of action has accrued to her for that sum. Wherefore plaintiff prays judgment against the defendant for the said sum of ten thousand dollars ($10,000), together with costs. Thomas & Hackney and W. E. Grayston, Attorneys for Plaintiff." Summons having been served, returnable to the December term, 1898, of said court, the defendant, on December 5, 1898, appeared, and filed its demurrer in said cause, in words and figures as follows, omitting caption: "Demurrer. Now comes defendant, and demurs to plaintiff's petition herein, for the reason that said petition does not state facts sufficient to constitute a cause of action against this defendant. Galen & A. E. Spencer, Attorneys for Defendant." And afterwards, on December 24, 1898, during said term, the said demurrer of defendant to the petition of plaintiff coming on to be heard, the same was, by the court, sustained, and, the...