Biondi v. Central Coal & Coke Co.

• Citation: 9 S.W.2d 596
• Decision Date: 21 June 1928
• Docket Number: No. 28401.,28401.
• Court: United States State Supreme Court of Missouri
• Parties: BIONDI v. CENTRAL COAL & COKE CO.

9 S.W.2d 596

BIONDI v. CENTRAL COAL & COKE CO.

No. 28401.

Supreme Court of Missouri, in Banc.

June 21, 1928.

Motion for Rehearing Overruled October 2, 1928.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

Action by Oliver Biondi, administrator of the estate of Batista Biondi, deceased, against the Central Coal & Coke Company. Judgment for plaintiff was affirmed by the Kansas City Court of Appeals (297 S. W. 171), and the case was certified to the Supreme Court to determine an alleged conflict in decisions. Judgment of trial court affirmed.

Walter C. Goodson, of Macon, for appellant.

Shelton & Shelton and Lacy & Edwards, both of Macon, for respondent.

BLAIR, J.

This is an appeal from the circuit court of Macon county in an action in damages for the death of respondent's decedent on April 12, 1925, alleged to have been caused by the negligence of appellant. The verdict was for respondent in the sum of $3,500. An appeal to the Kansas City Court of Appeals was granted from the judgment entered on such verdict. There the judgment was affirmed in an opinion written by German, Special Judge, in which Arnold, J., concurred, Bland, J., dissented in separate opinion, and Trimble, P. J., was absent. 297 S. W. 171. Thereafter the case was certified to this court because one of the judges deemed the opinion and decision of that court in conflict with the decision of this court in State ex rel. v. Ellison, 270 Mo. 645, 195 S. W. 722. The case is therefore here for appellate review, just as if the appeal had been granted to this court in the first instance.

We quote from the majority opinion as follows:

"After reciting the facts showing the representative capacity of the plaintiff, the corporate existence of the defendant, that it was operating the mine in question under the `room and pillar plan,' that the mine consisted of a vertical shaft driven in the ground, intersecting with horizontal beds or veins of coal, from the bottom of which shaft entries for passageways and air courses are driven and multiplied, as occasion demands, and that passageways, known as `room-necks,' connect the entries with the rooms where the coal is actually being mined, the petition charged it to be the duty of defendant to furnish deceased with a reasonably safe place in which to work and with a reasonably safe passageway to and from his working place in the mine, and to use ordinary care to keep the roofs of its room-necks, passageways, and entries, where deceased was compelled to be, reasonably free from loose and overhanging rock. That defendant failed in the performance of these duties, had failed to inspect the roof of the passageway in question and to take down or properly timber the loose and overhanging rock therein, and that defendant knew, or could have known by the use of ordinary care and caution, the dangerous and unsafe condition of the passageway and the presence of loose and overhanging rock therein in time to have prevented the casualty. But that defendant carelessly, negligently, and recklessly failed and neglected to remove or properly timber the passageway, by reason whereof the rock fell, causing the death of deceased.

"The petition further alleged that deceased was 33 years of age, single and unmarried, having a mother living in Italy, who was dependent upon him for support.

"The answer denied the allegations of the petition, except those alleging the corporate existence of the defendant; contained a plea of contributory negligence and deceased's failure to properly care for his own working place, and his failure to properly perform the duties imposed upon him as an employee of defendant, and that the death was the result of an accident.

"The record does not disclose the filing of any reply, but the trial seems to have proceeded as though the affirmative allegations of the answer were traversed by a reply.

"After unsuccessfully moving for a new trial and in arrest of judgment, the case is brought here for review.

"Deceased was killed by the falling of a rock or piece of rock from the roof or ceiling, and the trial seems to have proceeded on the theory that, if the place where the rock fell was under the sole charge and control of the deceased as his `room,' there was no liability; while contrariwise, if there was a duty on the defendant to inspect the place where the rock fell, and from such inspection its insecure position could have been determined, a liability would exist.

"There was positive evidence, substantial in character, from which the jury could determine the question of fact, and hence nonliability or liability, either way.

"It is true that frequently on cross-examination the testimony of a witness would be explained and perhaps the positiveness of his statement on direct somewhat shaken, but this is usual; and, unless there is testimony on cross-examination tantamount to a retraction, the testimony on direct stands and the duty rests with the jury to determine just what the witness' evidence has been.

"The evidence shows that after the neck was turned off the entry, room No. 10 was driven in by deceased, a skilled miner, from 50 to 80 feet, according to the varying estimates of the several witnesses, when a clay seam was struck. Room No. 10 was 23 or 24 feet wide, and when the clay seam was reached, the deceased, under orders from defendant, drove a passageway through it a distance of from 3 to 5 feet, into another coal vein, where he again began the widening or `drifting' process to form a room from which to remove the coal.

"The work of going through the clay seam according to the testimony of at least one witness, was called in mine parlance `narrow work,' the purpose evidently being to afford opportunity only for the free passage of cars and men to the room to be opened beyond, from which additional coal was to be mined.

"There is definite and substantial testimony that the company was responsible for the condition of places where `narrow work' occurs, and of passage or entry ways, no matter by what terminology such places may be designated. And there is also positive and substantial evidence that the company is not responsible for the condition of the room where the miner is actually mining coal unless the company is notified by the miner and then fails to correct a seemingly dangerous condition. This testimony undoubtedly accords with the settled mining law of this state. State ex rel. v. Ellison, 270 Mo. 645, 195 S. W. 722.

"There is no evidence that the deceased notified the company to examine and protect him against the possible casualty which happened.

"There is credible testimony that an examination of the roof would have detected the insecure position and condition of the rock, and there is equally credible testimony to the contrary.

"On Saturday preceding the casualty, the deceased had set and fired a blast in the coal vein which he struck beyond the clay seam. Whether this blast loosened the rock is entirely problematical as there is, and doubtless could be, no testimony on the subject.

"Defendant's contention on the merits is narrowed down to this: That, inasmuch as it was the duty of deceased to protect the roof of his room No. 10 (no notice having been given by him to the company to do so), and inasmuch as the part of the rock which fell was that part of the rock which was imbedded in the roof or ceiling of room No. 10, there is no liability, even though it was the duty of the defendant to inspect the `narrow work' through the clay seam, and even though such inspection would have discovered the insecure rock and prevented the casualty.

"Counsel asserts in his statement of the case (page 79) that the deceased `had removed all of the coal in his room up to the clay seam. He was then directed to drive the room through the clay about 12 feet wide instead of 24. * * * After passing through the clay seam the deceased had driven on into the face of the coal some 12 to 14 feet, and at least on one side had started to widen out his room again to the ordinary width. The widening process was only partly completed at the time of the accident.'

"It is apparent from these excerpts that it is counsel's theory that the original room No. 10, the passageway through the clay seam, and the...