Culver v. Minden Coal Co,

• Decision Date: 31 August 1926
• Docket Number: No. 4009.,4009.
• Parties: CULVER v. MINDEN COAL CO.
• Court: Missouri Court of Appeals

286 S.W. 745

CULVER v. MINDEN COAL CO.

No. 4009.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Appeal from Circuit Court, Barton County; B. C. Thurman, Judge.

Action by Jack Culver against the Minden Coal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. B. Keller, George R. Malcolm, and C. A. Burnett, all of Pittsburg, Kan., and H. W. Timmonds, of Lamar, for appellant.

Martin & Martin, of Lamar, for respondent.

BAILEY, J.

Action for damages arising from personal injuries sustained by plaintiff while working in defendant's mines. The petition charges that on the 29th day of October, 1924, plaintiff was employed by defendant corporation in the capacity of a steam shovel fireman on one of defendant's steam shovels; that it was plaintiff's duty to coal the furnace on said steam shovel; that the floor where plaintiff was compelled to work was covered by sheet metal iron; that the surface thereof had become worn smooth and slippery and had negligently been permitted to become and remain in a sloping condition, rendering the place in which plaintiff was compelled to work dangerous; that plaintiff complained in regard to said dangerous condition of the floor, and defendant promised to repair same but negligently failed so to do. It is further alleged that, on account of the condition of the floor, plaintiff, while in the discharge of his duty, in reaching for the fire door chain, suddenly slipped on said floor and fell, causing a left inguinal hernia. The damages claimed are based on alleged loss of time, hospital and doctor bills, bodily pain, mental anguish, and impaired earning capacity.

The answer contained pleas of contributory negligence and assumption of risk. The trial resulted in a verdict and judgment for plaintiff in the sum of $2,000, from which defendant has appealed.

Error is predicated on the failure to sustain defendant's demurrer to the evidence, on giving and refusing instructions, and excessiveness of the verdict. In considering the demurrer we must give to the plaintiff the benefit of all the evidence most favorable to his side of the controversy, and, if there is any substantial evidence to support the verdict, this court is bound thereby.

As to the conditions surrounding the place of work and the manner in which he was injured, plaintiff testified as follows:

"The boiler to the shovel sets with the head end up towards the engineer and craneman; the fire box door is on the rear end of the shovel; there is a space between four and five feet back of the boilers, where the coal sets and the fireman stands and fires the shovel. The back end of the shovel was opened up, and it was slick, and the coal had been wet up about nine-tenths of the time; the floor of the platform was slick, and in trying to fire that shovel I slipped, and in trying to catch myself I threw my arm over a cable, and I felt a sudden pain in my left side, just above the groin; the pain seemed to be right in there (indicating just above the groin), and continued to pain and hurt me; it was between 3:30 and 4 o'clock that afternoon, and I knew they couldn't get any one to finish the shift that afternoon, and there was no superintendent or anybody at the shaft that I could notify, and I went ahead and endured the pain the rest of the afternoon, because it was a short while until the shift was over, and about four o'clock I went up and told the craneman that I had hurt myself; I reported to the craneman about 4 o'clock, and it was between 3:30 and 4 o'clock that I received the fall. No one was working with me; the coal was put in a bucket, and the hoist took it up with a little coal hoist; the coaler furnished the coal; he would be down below the shovel. When I received the injury, the floor, I should judge, had from between 8 and 10 inches raise from the extreme out edge of the shovel down for about 3 feet or 3½ feet; when I fired that shovel I had to stand back in that position, something like that (illustrating); it was behind the right-hand boiler; I fired both boilers. I was standing in a position that it was down like this toward the coal bunkers, and the floor was very slick, and I reached for the door chain and started to pull the door open, and my feet slipped out from under me, slipping forward. There was about 4 or 5 feet space from the edge of the boiler to the extreme rear of the shovel; you have to stand back on that, because there is not ample room for you to get away from it."

Plaintiff testified in regard to his complaint and the promise to repair as follows:

"The shovel had been in that raised condition for possibly two weeks; on several different occasions I asked the superintendent to fix it, and he went back and looked at it and says, `Well; go ahead and work down here.' He says, `I am going to fix it; as soon as I get up where I will be able to repair.' The superintendent Was Ernest Spangler. I requested him to fix it possibly three or four times."

On cross-examination he testified as follows:

"The back end, on the right side, was kicked up between 8 and 10 inches; it sloped between 3 and 4 feet; it was flat sheet iron. While I worked there, I never took a hammer and beat that down; we would have had to stop the shovel; it takes 30 minutes to two hours to do it; since then, I have beat it with a hammer; sometimes Spangler heated it with a torch and me and Mr. Ward beat it down with a sledge hammer; I do not remember that I ever beat it down; it has got to be hit against something before it will raise up; it has got to have force; if hit real hard all comes up at once; this time when it came up it was hit several times; I didn't take anything and try to beat it down; I didn't have time. This shovel was doing its regular and usual work of digging coal, and the back end of the shovel would hit the wall, and by reason of that this iron would come up, and that is how it got in that condition. I worked on it that way for about two weeks, something like that; I said something to Mr. Spangler about it the first day it was done; he said, `Go ahead; that is safe enough for anybody to work on; I am going to fix it as soon as I have an opportunity.' He said it was safe, but he was going to fix it. Possibly five or six days before I was injured I slipped and fell up there and spoke to Mr. Spangler about it then; he said, in the presence of the coaler, `Go ahead.' He first says, `You are awkward.' He said, in the presence of the coaler, `Go ahead; I am going to fix it as quick as I get an opportunity.' I had slipped on it before; I slipped on it several times; I knew the condition it was in there; it was dangerous; I knew it was dangerous; I asked them to fix it; he didn't fix it; I waited five or six days and slipped on it and asked him again; a day or two before I was injured I asked him to fix it; I knew I had asked him these other two times and he hadn't fixed it, and I could see it all the time, and I knew the condition it was in; I kept on working at his direction. Q. Notwithstanding the fact that you had slipped on that and knew it was dangerous, you continued to work? A: When he told me it was safe, yes, sir; I thought he assumed the responsibility."

There was no eyewitness to the accident. Plaintiff was corroborated by other witnesses as to the condition of the fire box floor on the shovel and in regard to the complaint and promise to repair. There was also ample evidence to prove the injury was caused by the accident alleged.

Defendant contends that plaintiff's case Must fail because the danger, if any, was obvious to plaintiff and that he kept on working; that there is no proof that he relied on the superior knowledge of the master or assurance that the place would be fixed. In support of this proposition our attention is directed to the case of Knorpp v. Wagner, 195 Mo. 637, 93 S. W. 961. In that case the plaintiff was injured by an explosion of what is called a "failed shot" in the underground workings of a zinc mine. Negligence was laid on the theory that defendant's foreman directed a "lead hole" to be drilled across the hole in which the unexploded charge of dynamite was located and on assurance of safety. But, by the facts developed, it was clearly evident...