Carter v. Baldwin

• Decision Date: 10 May 1904
• Citation: 81 S.W. 204,107 Mo. App. 217
• Parties: CARTER v. BALDWIN.
• Court: Missouri Court of Appeals

81 S.W. 204

107 Mo. App. 217

CARTER v. BALDWIN.

St. Louis Court of Appeals. Missouri.

May 10, 1904.

MASTER AND SERVANT—INJURIES TO SERVANT— VICE PRINCIPALS — DUTIES — RELIANCE ON FOREMAN'S ORDERS—APPREHENSION OF DANGER—ASSUMPTION OF RISK—QUESTION FOR JURY—PLEADINGS—AMENDMENTS.

1. Under Rev. St. 1899, § 657, permitting the amendment of pleadings at any time before final judgment by the correction of mistakes or the insertion of allegations material to the case, the insertion in a petition for injuries to a servant of the words "negligently and carelessly" in characterizing the act of a foreman was permissible.

2. By filing an answer to a petition as amended, defendant waives any error in the allowance of the amendment.

3. One who hires and discharges men and superintends the underground work of a mine, directing the men where and how to work, is a vice principal, although he works with the men and performs the same character and grade of labor that they perform.

4. It is the duty of a vice principal, directing the underground operation of a mine, to provide the men under him with as reasonably safe places to work as the nature of the employment admits.

5. An experienced miner, although but 19 years of age, assumes such risks as are usually incident to his employment, and such other risks as are glaringly presented to one of his experience as a miner.

6. A mine employé, who observes a crevice in a boulder, and apprehends danger therefrom, and calls the attention of his foreman thereto, has a right to rely on the superior judgment of the foreman, and on his opinion that it will not fall; and in so doing, and in obeying the foreman's order, he does not, as a matter of law, assume the risk of the danger which he apprehends.

7. Where a boulder in a mine had become cracked, and was noticed by servants in the evening, but on their return to work in the morning there was no perceptible change in the crevice, it could not be said, as a matter of law, that the danger was so manifest as to threaten immediate injury; and whether or not a servant was guilty of contributory negligence, or of assuming the risk threatened by the crevice in the boulder, was a question of fact for the jury.

8. The question of assumed risk is usually one of fact for the jury, and to authorize the court to hold as a matter of law that the risk was assumed the evidence must be all one way, and to the effect that the danger was so open and glaring that it could not have escaped the observation of an ordinarily prudent man, or the notice of one with the experience of the injured servant.

Appeal from Circuit Court, Lawrence County; Henry C. Pepper, Judge.

Action by Earl Carter, by next friend, against C. H. Baldwin. From a judgment for plaintiff, defendant appeals. Affirmed.

E. J. White, for appellant. H. H. Bloss, for respondent.

Statement.

BLAND, P. J.

Plaintiff is a minor, and sues by Miles Carter, his next friend. The material allegations of the petition on which the case was tried are as follows: "That on the 27th day of August, 1902, the said minor was being employed by the defendant to work in defendant's mine about a mile east of the city of Aurora, in Lawrence county, Mo., located on the land owned by the Cleveland and Aurora Mineral Land Company, and commonly known as the `Independent Mine'; that on the day mentioned the plaintiff, with his colaborers, was directed by defendant's foreman, Robert Gilmore, to work on the scaffold in defendant's mine in one of the drifts of said mine at a depth of about ninety feet from the surface of the earth; that immediately in front of said scaffold, and in close proximity thereto, hanging in the roof of said drift, was a large slab that had some evidences of the fact that it was working loose; that it was apparent that, if it should fall, it would strike the scaffold on which plaintiff and his colaborers were working, and cause it to fall; that said scaffold was of a height of thirty feet, at least, from the bottom of the drift; that on the morning in question, the plaintiff and his colaborers having been ordered by the said foreman to work at a place in said mine, it became necessary for them to stand on the top of said scaffold after proceeding to the place where they had been ordered to work, and, observing the said slab overhanging the said drift, called the foreman's attention thereto, and asked him whether it was safe for them to work at the place he had ordered them, in view of said slab; that the said foreman negligently and carelessly assured the plaintiff and his colaborers that it was safe, and ordered them to proceed to work; that the plaintiff, on account of his youth and inexperience and the maturer age and commanding position of defendant's foreman, relied on the assurances of the foreman, and in obedience to his orders did proceed to work, and while so engaged in the prosecution of the work assigned to him by said foreman, and while he was in every way complying with such orders, and was entirely without fault or negligence on his part, the said slab came crushing down, tore through the scaffold, and caused it to break and fall and threw plaintiff thirty feet or more to the bottom of the drift, where he lit on a rock there lying, and sustained permanent injuries, in this: that the internal malleolus bone was broken on his right leg or ankle, which never mended, leaving the ankle in a permanently weakened condition, so that it is liable to be thrown out of position when he attempts to use it; his ankle was then thrown out of position, and the muscles of his ankle and foot were badly sprained, lacerated, and torn; and plaintiff has been entirely incapacitated from following his employment as a miner, at which he could earn two dollars a day, ever since said accident, and will be entirely so incapacitated for months to come, as well as be permanently injured as already described; that on account of said injuries plaintiff has been put to an expense of ten dollars in buying medicine for said foot and a doctor bill of ten dollars, and plaintiff, on account of said injuries, suffered great pain and mental anguish; that said injuries were not the result of the negligent orders and assurances of defendant's foreman, and were not the result of any negligence on the part of the plaintiff minor; that plaintiff has been damaged by such injuries so sustained by him in at least the sum of forty-five hundred dollars, for which sum, with his costs, he asks judgment. H. H. Bloss, Plaintiff's Attorney." (The words "negligently and carelessly" after the word "foreman," in said petition, were inserted by counsel, with the consent of the court, at the November term, 1902, of said court, over defendant's objections and exceptions.) Omitting caption, the answer is as follows: "Defendant, for answer to the amended petition, denies each and every allegation in said answer contained. Further answering, defendant says that it is not true that plaintiff was injured by reason of defendant's negligence, but says that, if the plaintiff was injured at all, it was the result of his own negligence and that of his fellow servants and coemployés; that the injury, if any, resulted from a risk incident to the plaintiff's employment, could not have been foreseen by the defendant if not by the plaintiff, and was a risk assumed by the plaintiff by reason of his employment." The new matter in the answer was put at issue by a reply.

Plaintiff's evidence tends to show that he was 19 years old at the time he was injured. He had worked for five years in the mines, and about one-third of that time had been doing the kind of work he was engaged in when hurt. He had been at work in defendant's mine for about six weeks prior to his injury. The evidence shows that Robert Gilmore was the underground or mine boss, who hired and discharged the men, and gave directions as to where and how they should work. Plaintiff was a cutter; that is, he assisted in taking down the face of the drift in the mine. The mine was 80 or 90 feet deep, and the drift had been driven 50 or 60 feet from the shaft. On the evening previous to the day plaintiff was injured he and the other employés in the mine, under the direction of Gilmore, the boss, erected a scaffold about 30 feet high for the men to work on in taking down the wall or face of the drift. Plaintiff and some of the other employés noticed a crack or crevice about one-half inch wide and from 25 to 30 feet long in what they call a "slab." This slab was over and near one edge or side of the scaffold. Plaintiff called Gilmore's attention to the crack, and said to him it looked "kind of bad." Gilmore's reply was, "Hell, that won't fall." To another workman he said, "I don't think it will fall until we squib, and there won't be any of us up here then"—meaning that none of the men would be on the scaffold or under the slab. After the scaffold was completed, nothing more was done until the next morning, when, to all appearances, the slab and crevice were in the same condition as on the previous evening. On entering the mine the next morning, Gilmore and five men,...