Carter v. Baldwin

• Decision Date: 10 May 1904
• Parties: CARTER, Respondent, v. BALDWIN, Appellant
• Court: Missouri Court of Appeals

81 S.W. 204

107 Mo.App. 217

CARTER, Respondent, v. BALDWIN, Appellant

Court of Appeals of Missouri, St. Louis

May 10, 1904

[Copyrighted Material Omitted]

Appeal from Lawrence Circuit Court.--Hon. Henry C. Pepper, Judge.

Action for personal injuries, appeal from judgment in favor of plaintiff.

AFFIRMED.

STATEMENT.

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 twenty-seventh 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, Missouri, 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 or cause 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, that 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 mature 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 in 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 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 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 coemployees; 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 nineteen 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 eighty or ninety feet deep and the drift had been driven fifty or sixty feet from the shaft. On the evening previous to the day plaintiff was injured he and the other employees in the mine, under the direction of Gilmore, the boss, erected a scaffold about thirty feet high for the men to work on in taking down the wall or face of the drift. Plaintiff and some of the other employees noticed a crack or crevice about one-half inch wide and from twenty-five to thirty feet long in what they called 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, including plaintiff, got on the scaffold for the purpose of drilling to put in shots. Plaintiff and one other hand were directed by Gilmore to drill a hole a few inches above the crack in the slab. Gilmore and the others on the scaffold proceeded to drill holes at other points. After the drilling had been going on for a few minutes the slab, which was twenty-five or thirty feet square and six or seven feet thick, fell striking the scaffold and throwing part of it down, including the part where plaintiff was at work. Plaintiff, Gilmore and several others went down with the scaffold and were all more or less hurt. Plaintiff lit on his right foot on a loose rock and received an injury to his right ankle. Some of the tendons or bones were broken or some of the ligaments were torn loose, resulting in an enlargement and stiffening of the ankle, greatly impairing its use.

Defendant took plaintiff's deposition before the trial which he read in evidence. In this deposition, in answer to the following question, "Describe how you came to get hurt?" Plaintiff said: "The morning of this accident there was a slab hanging in front of the scaffold and we went up on it to go to work. Myself and Gilmore and his brother and Pat Loller and Bert Sorenson and Ollie Jenkins had built the scaffold the day before to work on, to drill. Before we went to work after we were on the scaffold, one of the boys asked the foreman, Bob Gilmore, if he thought the slab would fall. He said that it wouldn't unless it was when we squibbed the shot and then no one would be on the scaffold. And then he came over to where me and Ollie Jenkins were and told us where to go to work. We went to work and the slab fell. I don't know what made it fall, but it fell and that made the scaffold fall."

Plaintiff testified that the probability of the slab falling was discussed among the men the evening before it fell. Some of them thought it might fall but Gilmore expressed the opinion that it would stay until after they squibbed. Plaintiff asked Gilmore if he thought it was dangerous and Gilmore replied that he thought it would stand. Plaintiff said he thought it looked like it might fall, "but the boss had had more experience than I had and I supposed he knew." Plaintiff also testified that it was customary in mines when there was a crack overhead to pry down whatever had the appearance of falling. Defendant's evidence shows that rock and dirt frequently fall from the roof of a mine and that it could not be told when they would fall, sometimes there would be a crack and nothing would fall and at other times things would fall when there was not much of a crack to indicate that "anything might fall." Defendant's evidence shows that C. F. Johnson was the general superintendent of defendant's mine; that he was mostly above ground, but occasionally went below into the mine; that Robert Gilmore was the mine boss, had charge of the men working in the mine and directed them when and how to work and worked with them and was authorized to employ and discharge men.

At the close of all the evidence defendant asked the court to instruct the jury to find the issues for the defendant. The court...