Dodge v. Manufacturers' Coal & Coke Co.

• Decision Date: 04 December 1905
• Citation: 91 S.W. 1007,115 Mo. App. 501
• Parties: DODGE v. MANUFACTURERS' COAL & COKE CO.
• Court: Missouri Court of Appeals

91 S.W. 1007

115 Mo. App. 501

DODGE v. MANUFACTURERS' COAL & COKE CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

Rehearing Denied January 8, 1906.

1. PLEADING — PETITION—WAIVER OF DEFECTS.

Where, in an action for injuries to a servant, the allegations of negligence in the petition strongly stated inferentially that the defect rendering the place dangerous, and defendant's knowledge thereof, existed for a sufficient time for defendant to have made the place safe, defendant, by pleading to the merits, waived any right to take advantage of the absence of a direct averment.

2. MASTER AND SERVANT—INJURIES TO SERVANT —ASSUMPTIONS OF RISK.

It is only when it becomes apparent to any reasonable man that the master has failed in his duty to provide a safe place to work, and that the safety of the servant is imminently endangered, that he is required to refuse to work in the place, in order to avoid assumption of risk.

3. SAME—EVIDENCE—QUESTION FOR JURY.

In an action for injuries to a miner owing to a mass of rock having fallen upon him, held, a question for the jury whether plaintiff assumed the risk.

4. SAME—CONTRIBUTORY NEGLIGENCE.

Where a miner working in an entry sat down for a moment to enable a car to pass him, and, while sitting there, a portion of the roof of the entry fell and injured him, there was no negligence in sitting down under the defective roof, unless he was negligent in working in the entry at all, under the conditions known to him.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by L. C. Dodge against the Manufacturers' Coal & Coke Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Campbell & Ellison, for appellant. Higbee & Mills, for respondent.

JOHNSON, J.

This is an action to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of defendant. The answer was a general denial and plea of contributory negligence. Plaintiff had judgment in the sum of $1,000, and defendant appealed.

At the time of injury, February 26, 1903, defendant was, and had been, engaged in the business of mining for coal. Plaintiff, a miner, was employed by defendant and was at work in an entry that horizontally penetrated a hill from its side. This entry was some 200 yards long and about 8 feet wide. Its roof at the place in question was of slate and was not artificially supported. Several days before the injury, plaintiff states he noticed that the slate overhanging the place where he was ordered by defendant to work was cracked and appeared to him to be unsafe. He called the attention of the foreman to its condition, and, in the forenoon of the day preceding the injury, had a conversation with the foreman as follows: "I told him I would like to have it taken down there. I was afraid to work under it. He said: `You are terribly afraid of getting hurt, that you couldn't sledge it down.' He said: `It wouldn't hurt you, if it did fall.' I said: `I will take it down if you will allow me for it.' He said: `I have got day men that will attend to that when it is necessary.' * * * I apprehended danger there. I notified him that it was dangerous. I thought it was dangerous. I believed it was not safe; but the pit boss told me it was, and I supposed it was safe." Other witnesses testified that the foreman was notified by plaintiff and by other miners at work there of the condition of the roof and answered in effect that it was safe for the present, and that he would have the loose slate removed when it became necessary. The foreman, when on the stand, admitted that a miner, not the plaintiff, called his attention, in the forenoon of the day before the injury, to the condition of the roof, and stated that, although he thought it was safe, he ordered workmen to take the loose material down, and that no report was made by them of their compliance with his order. In the afternoon of the day following that on which the foreman said he ordered the slate removed, plaintiff resumed the task assigned him of "lifting bottom"; that is, taking clay out of the entry. He was compelled to stop work for a moment or two until other workmen could remove a car of coal out of the way, and sat down to rest. In half a minute thereafter, a section of the roof above him, some 25 feet long and 3 or 4 inches thick, fell upon and injured him. It was the portion of the roof about which plaintiff and the other men had complained, and nothing had been done in the way of removing it. While plaintiff thought it was unsafe, he says he relied upon the superior judgment of the foreman, and thought, after his attention had been called to it, he would have it removed in proper time. In other words, plaintiff, the other miners, and the foreman all considered it in some degree dangerous, but not imminently so. That it could have been removed in the time that elapsed after the foreman admits having received notice of the defect is apparent from all the evidence.

The first error assigned is directed to the sufficiency of the petition. The defect claimed is the absence of any averment charging the existence of an unsafe condition of the roof for a sufficient time before the injury to have enabled defendant, in the exercise of ordinary care, to have made it safe. The allegations criticised are as follows: "That said Evans (the foreman), being so in charge of the work and having supervision of defendant's said mine, and the working thereof, negligently and carelessly ordered and directed plaintiff to work in a certain entry of said mine; that the roof of said entry was in a dangerous and unsafe condition; that as to the place where defendant was ordered and so directed to work there was a large mass of slate and dirt overhanging in the roof thereof that was liable to fall, as defendant and said pit boss well knew, or by the exercise of reasonable diligence would have known, and that should have been...