Berry v. Peacock Coal & Development Co.

• Decision Date: 21 May 1923
• Docket Number: No. 14707.,14707.
• Citation: 253 S.W. 456
• Court: Missouri Court of Appeals
• Parties: BERRY v. PEACOCK COAL & DEVELOPMENT CO.

253 S.W. 456

BERRY v. PEACOCK COAL & DEVELOPMENT CO.

No. 14707.

Kansas City Court of Appeals. Missouri.

May 21, 1923.

Rehearing Denied July 2, 1923.

Appeal from Circuit Court, Bates County; C. A. Caivird, Judge.

"Not to he officially published."

Action by George Berry against the Peacock Coal & Development Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. A. Denton, of Butler, and M. D. Aber, of Warrensburg, for appellant.

W. O. Jackson and D. C. Chastain, both of Butler, for respondent.

TRIMBLE, P. J.

Plaintiff, while working in a strip pit from which coal was being taken, was injured by a large clod of frozen earth or soapstone, shaped like a huge cheese or grindstone, which rolled edgewise down the sloping side of the dump against his lea and broke it. He brought this action for damages and recovered a verdict for "$1,750, less $500 found to be paid for doctor bills, labor," etc., upon which the court rendered judgment for $1,250 in plaintiff's favor, and from said judgment the defendant has appealed.

It seems that in the creation of a strip pit, and in subsequently taking coal therefrom, a cut is made in the earth's surface removing the top layer of earthen material. down to the coal that is sought to be takez, out. The removal of the earth from the top of the coal is done by means of a steam shovel attached to a cable which runs from the central part of the machine along and over a pulley on the "dipper stick" at the end of a boom, which, operating upon a circular base and pointing upward at an angle, could be turned around in a circle and from side to side as desired. The cable was attached so that the "dipper" or the shovel proper could be raised toward or lowered from the dipper stick at the end of the boom by the operator of the machine in the process of scooping up a shovelful of earth and in. then swinging the boom around to deposit the earth thus scooped up and returning for another shovelful. After the first cut is made as above stated, the shovel then starts back along the side of the cut from whence the coal is to be taken and removes, a strip of the earth lying above the coal, and men working in the rear of the shovel then get out the coal that is thus exposed. In thus removing a strip of earth, the shovel scoops the earth from the layer of coal up to the surface, and the same is by means of the boom swung around to the other side of the cut and deposited there, forming a high ridge of removed earth, clods, and stones as the shovel proceeds along the cut. The progress of the shovel thus leaves behind it on the coal side an almost perpendicular wall of earth that has not yet been disturbed and on the opposite side therefrom the ridge of loose earth above mentioned, the sides of which slope downward at an angle of perhaps 45 degrees. In the rear of the shovel men follow along on the layer of coal thus uncovered, some of whom bore holes in the coal and by means of shots break it up and others shovel it into cars and haul it out.

The strip pit in question had been opened and worked for a considerable period of time, and on the day of plaintiff's injury, December 11, 1919, the progress of the steam shovel was slightly northwest along the almost perpendicular bank of earth lying to the south or southwest of the machine, as it slowly, advanced on the newly uncovered width of coal and scooped off a strip of the superincumbent layer of dirt ahead. Behind-it, as the machine thus slowly advanced, was the uncovered coal, with the wall of undisturbed dirt on the south side, while on the north or northeast side was the ridge of earth which had been removed from off the coal and deposited there by the dipper.

Plaintiff said he was "probably" 75 feet east of or behind the steam shovel "and, I expect, 25 or 30 feet from the north bank; I couldn't just say what." Said north bank thus referred to was the ridge of removed earth hereinbefore referred to. Plaintiff's witness Steele located him about 40 feet behind the east end of the frame of the steam shovel and a little closer to the north bank than he was to the south. The width of the cut between the perpendicular wall of undisturbed earth 16 feet high and the sloping ridge of removed earth does not appear.

After firing a shot in a hole drilled into the layer of coal whereby it was broken up, plaintiff was at work at the place described above, engaged in prying some frozen earth from the coal so that the men could load the latter and transport it from the strip pit. It was while he was thus engaged that the huge cheese or grindstone shaped clod rolled down the sloping side of the ridge of earth and struck plaintiff, knocking him down and breaking his leg. The clod came to a standstill resting on plaintiff's leg, and it was all two men could do to lift or roll the clod off.

A number of large boulders or chunks of dirt or soapstone were lying along the top of the ridge which had theretofore been deposited there by the shovel, and plaintiff's witness Steele said some of them did slip down. But the evidence is that they did that only when they were first dropped from the shovel. And it appears from the evidence of John Boyd, in charge of the shovel, and defendant's own witness, that in four years' experience this was the only clod he had ever seen roll down across the face of the coal. He said that, in carrying up the stuff they put on top of the fill or ridge, chunks of dirt, if they did not drop off, would just roll down to the bottom Of the fill.

No one saw the chunk that hit plaintiff start. Steele, plaintiff's witness, says he was on the bottom of the vein of coal shoveling it into cars, plaintiff was on top of the vein or table of coal, and witness saw the boulder just as it struck plaintiff. The latter did not see it at all before it struck him. Boyd, defendant's witness, said he was running the shovel, and claimed that at the time the boom was to the northwest and he was shoveling dirt ahead or west of the machine, but that

"As the shovel run around I looked at the dirt, which I naturally always do you know; always look around the bank; and I seen the chunk rolling down there, and I hallooed three times, just before it hit Berry, to look out. 'Look out,' just as loud as I could halloo, of course, and I saw it hit him. * * *

"Q. Where did you first see the lump that you talk about? A. It was rolling on the coal straight towards him.

"Q. How far was it from him? A. When I seen it?

"Q. Yes. A. I judge about 20 feet.

"Q. State whether or not it was on the level. A. On practically the level; yes."

Further on he said he did not know about the chunk before he saw it—

"just seen the chunk hop off and hit him.

"Q. And you were at that time, and had been, working the dirt out ahead there, as you did all the time there? A. Oh, yes; yes, sir."

He further testified that not only was the boom not turned to the east that day at all, but that it had been two weeks since any dirt had been piled there by the shovel, or a fill made back east there opposite to where plaintiff was at work.

However, the evidence in plaintiff's behalf is that the shovel was not taking dirt from in front or west of the machine, but that there had been a slide of loose earth back of the machine down on the coal and Boyd had the boom turned back to the case and was engaged in throwing this loose dirt back over north of the top of the ridge; that this necessitated carrying the dipper full of such loose earth across north over the top of the ridge and there emptying it and bringing the boom and dipper back south again across the ridge to get another shovelful; that in such operation the dipper "would just go over the top of the bank"; and that the boom and dipper had started back into the pit and had come across the top of the bank "just before" the plaintiff was struck by the rolling chunk.

At the commencement of the trial and during the introduction of the evidence the amended petition on which the case then stood alleged that defendant carelessly placed, or permitted the large clod to be placed, on top of the bank by the side of which plaintiff was working in such a position as that it was likely to roll down against and injure him; that plaintiff did not know of said clod, but the defendant did or could have known of it by the exercise of ordinary care; that plaintiff, using due care and without knowledge of the large clod, worked on the coal until the clod rolled down and broke his leg.

The answer, after admitting that defendant was uncovering coal with a steam shovel, denied everything else, and then set up that in doing the work defendant followed the usual and ordinary and only practical way of doing same, and that if there was any danger in such work as thus conducted it was inherent in the business, and pleaded that plaintiff had assumed the risk. The answer also alleged a verbal agreement between plaintiff and defendant whereby the latter cared for, nursed, boarded the former, and furnished him with medical and surgical' attention, in consideration of the former not subjecting defendant to the expense and annoyance of a suit and releasing defendant of all claim growing out of the injury. The reply denied this. The evidence disclosed that the defendant did furnish such care and board, but the evidence in plaintiff's behalf tended to show that there was no agreement that plaintiff would refrain from suing. This accounts for the deduction made by the jury in their verdict.

At the close of all the evidence the plaintiff, over "the objection of the defendant that there was no evidence to justify it, was allowed to amend his petition by inserting the further charge that either the defendant "negligently or carelessly struck the dump pile...