Bettoki v. Northwestern Coal & Mining Co.
| Decision Date | 06 December 1915 |
| Docket Number | No. 11698.,11698. |
| Parties | BETTOKI v. NORTHWESTERN COAL & MINING CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Macon.County; Nat M. Shelton, Judge.
"Not to be officially published."
Action by Batista Bettoki against the Northwestern Coal & Mining Company. From judgment for plaintiff, defendant appeals. Affirmed.
Guthrie & Franklin and W. C. Goodson, all of Macon, for appellant. C. F. Hale, of Bevier, and Lacy & Shelton, of Macon, for respondent.
Plaintiff was a coal miner of long experience, and while engaged in defendant's service had his leg broken by a large rock falling from the roof of the room in which he was working. He recovered judgment in the trial court.
Plaintiff's room was on an entry running north and south. He was driving the room in an eastern direction, and had driven it some distance. Car tracks entered the room from the entryway at about the center, and ran within 10 feet of the face of the room. This face was near 30 feet in length, north and south, but plaintiff had pushed the south half some 8 or 10 feet further than the north half, thus forming a corner. A large rock (known by miners as a bell rock) was in the roof, and one end extended up to within about 10 inches of the face of the room. Plaintiff had observed it for four or five days and, knowing of its danger, clad several times, requested defendant's foreman for props, whereby he might render himself secure while engaged in his world. The second day before he was hurt, defendant sent down some rotten props, and they were too short, and he again requested props on the day before the rock fell, and none were sent. On observing the rock and knowing its danger, plaintiff had several times tried to pull it down—the last time, the morning it fell. He testified that, while knowing its dangerous character, he nevertheless did not think the danger imminent. His own expression was, "I know the rock was dangerous, but I didn't think it fell so quick." Plaintiff, being a foreigner unacquainted with our language, testified through an interpreter, and it is somewhat difficult to understand just what he was doing at the moment the rock fell. At any rate, it cannot be understood that any special movement of his, or his special position at the time, constituted contributory negligence as a matter of law. So, unless we are to hold that his continuing to work in the room at all, near enough to be reached by the rock, was such negligence, we must rule that the trial court properly refused defendant's demurrer to tie evidence. A fair and reasonable interpretation of his evidence is that, while knowing that the rock was dangerous unless propped, and knowing that his request for props had not been complied with, yet he believed he could continue to work in safety. He was in some degree justified in this, for he had tried twice just before it fell and failed to pull it down.
We reject defendant's suggestion that the mere request for props demonstrates that plaintiff was guilty of contributory negligence in continuing to work without them. A request for props does not necessarily carry with it a suggestion that danger: is glaring and imminent. If it did, a request would mean that work should immediately cease. The request, as contemplated by the statute (section 8473, R. S. 1909) is a precaution, suggested by the care and prudence of an ordinarily careful man. It is a safeguard, not against certain catastrophe, if not immediately complied with, but to make as secure as may be what otherwise is not certainly reasonably safe. When made and not complied with, the mine operator is liable for the results which may follow his neglect.
It is further suggested that a request for props relates to the condition of the mine at the time the request is made, and not a condition arising subsequently, and that each subsequent condition calls for a separate request. This, too, we regard as an improper construction of the statute when stated without qualification. The request will cover any unsafe condition, present or in the reasonably near future, which the props, if furnished, would have rendered reasonably secure. It is not meant by this to say that a miner's request for props, not complied with, might not, an unreasonable length of time expiring, or other circumstances or conditions arising, come to mean that the necessity for the props called for had ceased, and that, though new conditions arose, a new request would not be necessary. But such considerations are not presented in this case; for here plaintiff was, for a number of days before the rock fell, continuously calling for props.
The instructions given for plaintiff are attacked for the reason that they submitted whether defendant furnished props "within a reasonable time" after being requested, without defining what would be a reasonable time. The right kind of props were not furnished at all, and hence, in that view, the question of the time being reasonable is not in the case. But we assume the point made refers to whether plaintiff requested them in time before the rock fell reasonably sufficient for defendant to have furnished them had it intended to comply with the request. The evidence makes the point untenable. Plaintiff testified that he asked for props on each of four or five days prior to the injury and on the day before. There was no question made that the request for props was so shortly before the rock fell that defendant did not have time to furnish them, and we would regard it as...
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