Daugherty v. Neosho Granby Mining Co.

• Decision Date: 24 November 1918
• Docket Number: No. 2372.,2372.
• Citation: 207 S.W. 253
• Parties: DAUGHERTY v. NEOSHO GRANBY MINING CO.
• Court: Missouri Court of Appeals

207 S.W. 253

DAUGHERTY v. NEOSHO GRANBY MINING CO.

No. 2372.

Springfield Court of Appeals. Missouri.

November 24, 1918.

Rehearing Denied January 2, 1919.

Appeal from Circuit Court, Newton County; Charles L. Henson, Judge.

Action by Homer Daugherty, by next friend, C. S. Daugherty, against the Neosho Granby Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A. E. Spencer, of Joplin, for appellant. Claud B. Kenney, of Joplin, for respondent.

BRADLEY, J.

Plaintiff sought to recover for personal injury upon a petition, the material parts of which, so far as concerns this cause, are as follows:

"That on or about the ___ day of January, 1918, plaintiff was employed by the defendant, and was working for defendant in the capacity of a `dummy' or assistant machine man in underground work; that said mine consisted in part of certain underground rooms and drifts, reached from the surface by means of a vertical shaft; that said men who worked in said underground rooms and drifts were lowered and raised from and to their work through said vertical shaft, by means of a holster stationed upon and above ground and with a steel cable which was attached to a large steel tub; that said appliances were used for the purpose of hoisting out the mineral substances and débris which was taken out of said underground rooms and drifts, and said apparatus was used also for the purpose of conveying their men and servants to and from their work as above described; that said hoisting apparatus was operated by one of defendant's servants, and in his control, said servant and agent being stationed in the hoisting room, which was situate directly over the vertical shaft and above the surface of the earth; that on above-mentioned date the plaintiff was in the employ of the defendant as a 'dummy' or assistant machine man, and that his duties compelled him to work in said underground rooms and drifts, and in reaching same to descend in such tub and be hoisted therefrom in the same manner; that the defendant had the exclusive control of the operation of said hoisting apparatus, and the plaintiff had no part in its operation or control; that on said above date the plaintiff in the performance of his duties entered such tub, along with other employés of the defendant, for the purpose of being lowered into such mine; that the defendant by its agents and servants undertook to lower and transport plaintiff into said mine, and so negligently conducted itself in the premises that such tub was permitted to descend the said shaft with great speed through a distance of 100 feet and strike the bottom thereof with great force and violence; and that plaintiff was thrown with great force and violence against the edge of the tub and then upon the ground below."

Defendant filed a motion to require plaintiff to make his petition more definite and pertain, which motion was treated more in the nature of a demurrer, and this motion was sustained. Plaintiff refused to plead further, and the court rendered judgment for defendant. On timely motion by plaintiff this judgment was set aside, and defendant appealed. The only question here is the sufficiency of the petition. Defendant, as its motion to make more definite would imply, insists that it is incumbent upon plaintiff to advise...