Bowman v. Marceline Coal & Mining Co.

• Decision Date: 03 March 1913
• Citation: Bowman v. Marceline Coal & Mining Co., 154 S.W. 891, 168 Mo. App. 703 (Mo. App. 1913)
• Parties: BOWMAN v. MARCELINE COAL & MINING CO.
• Court: Missouri Court of Appeals

154 S.W. 891

168 Mo. App. 703

BOWMAN v. MARCELINE COAL & MINING CO.

Kansas City Court of Appeals. Missouri.

March 3, 1913.

1. EVIDENCE (§ 317) — ADMISSIBILITY — HEARSAY.

In a personal injury action, evidence of how another said the injury occurred is inadmissible, being hearsay.

2. WITNESSES (§ 388) — IMPEACHMENT — FOUNDATION.

In a personal injury action, though one of plaintiff's witnesses testified he did not halloo to plaintiff, he cannot be impeached by showing that he told one K. he did halloo, where he was not asked whether he made the statement.

3. APPEAL AND ERROR (§ 205) — PRESENTATION OF ERROR — OFFER OF PROOF.

Where there was no offer to prove what the answer would have been, the exclusion of a question is not reversible error.

4. MASTER AND SERVANT (§ 273) — ACTIONS — EVIDENCE.

In a personal injury action by a plaintiff, who was performing work other than his ordinary duties, evidence at whose request he was doing that work was immaterial on the question of the assumption of risk, it appearing that it was no more dangerous than his ordinary duties, and that the injury resulted from the master's negligence, for a servant does not assume the risk of injury from his master's negligence.

5. EVIDENCE (§ 471) — OPINION EVIDENCE.

Where a witness had testified to the experience, competency, and sobriety of an engineer who operated the hoists in a mine, the exclusion of a question whether the engineer was a good, safe man was proper, calling for the witness' opinion as to whether the engineer was negligent on the occasion of the injury, for which a recovery was sought.

6. MASTER AND SERVANT (§ 137) — INJURIES TO SERVANT — SIGNALS.

The operation of cages in the shaft of a mine without signals to those who are required to load and empty them is gross negligence.

7. MASTER AND SERVANT (§ 137) — INJURIES TO SERVANT — SIGNALS.

While the signals for the operation of hoists in a mine required by Rev. St. 1909, § 8456, are for the benefit of all who can be protected by them, whether on the cage or working about it, nevertheless, without regard to the statute, it is negligence to move the cage without a signal, where there is a system of signals in use in the mine.

8. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — CONTRIBUTORY NEGLIGENCE.

Where plaintiff was engaged in loading and unloading the cage in the hoist of a mine, and was required to do his work rapidly, he is not guilty of contributory negligence as a matter of law in failing to watch the cage which had reached the bottom before shoving a loaded car on it, where he knew that the cage should not move until he signaled the engineer, or the engineer whistled.

9. DAMAGES (§ 131) — PERSONAL INJURIES — MEASURE.

Where a miner was struck on the head with the heavy cage of a hoist, and knocked back several feet, suffering a gash several inches long and being disabled for a month, an award of $1,000 is not excessive.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Lon Bowman against the Marceline Coal & Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. W. Mullins, of Linneus, C. M. Kendrick, of Marceline, and F. S. Hudson, of Chillicothe (John S. Dean, of Topeka, Kan., of counsel), for appellant. Bresnehen & West, of Brookfield, for respondent.

TRIMBLE, J.

Action for damages on account of personal injury sustained by plaintiff while working in defendant's mine. The jury awarded $1,000, and defendant appeals. The injury came about in this wise: Defendant's coal shaft had two cages, known as the east and west cage, attached to a cable coiled upon a drum in such way that, when the engine rotated this drum so as to raise one of the cars, it lowered the other. The engine was on top of the ground about 50 feet from the mouth of the shaft. When one cage reached the top with a loaded car, the other cage was at the bottom with an empty. Two men, known as "cagers," were stationed at the bottom, one of which would immediately rush the empty off the cage, and the moment it cleared the track leading to the cage the other man would push a loaded car upon the cage. When this loaded car reached the top, the other cage would be at the bottom with an empty which would be taken off by the man, who had just caged the loaded car now at the top, and the other man would push a loaded car into the cage. Thus they would rapidly alternate as the cages went up and down. Whenever a cage reached the bottom, it stayed there, and was not moved until the cager with a loaded car had got it securely on the cage, and gave the signal (one pull on the bell) to the engineer to hoist the cage. No one else had any right to give this signal, except the cager who put on the loaded car. This signal was given by pulling a wire which ran from the bottom of the shaft to the top, and thence to a bell in the engine room. After a cage was started on its way to the top by one pull on the bell, another pull would stop the cage wherever it was, and two pulls would cause the engineer to lower it back to the bottom. And, if a cage had been stopped thus in its ascent, the engineer had no right to lower it until he got the necessary two bells, and these could be given only by the cager at the bottom. However, if the engineer desired to hoist the cage without a signal from the cager, he was required to give one blast on his whistle as a warning to the cager below that he was about to move the cage. And if, after hoisting the cage for a distance in this way, he stopped the cage, he was required to give two blasts on the whistle before lowering it back to its place.

Plaintiff was one of the two cagers at the bottom of defendant's shaft. The west cage came down with an empty car. Plaintiff's associate cager immediately pushed the empty off...