Dodge v. Manufacturers Coal & Coke Company
| Decision Date | 08 January 1906 |
| Parties | L. C. DODGE, Respondent, v. MANUFACTURERS COAL & COKE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
December 4, 1905;
Appeal from Schuyler Circuit Court.--Hon. Nat M. Shelton, Judge.
AFFIRMED.
Judgment affirmed.
Campbell & Ellison for appellant.
(1) The allegation is that the defendant "knew or ought to have known" of the defect, but we ask the question when it ought to have known of such defect? Was it the day before or the minute before the accident? Unless the allegation is that the defect complained of had existed for a sufficient length of time so that knowledge thereof is imputable to the defendant, or that defendant actually knew of the defect in time to have remedied it and prevented the injury, there is no cause of action stated. Nixon v. Railroad, 141 Mo. 425; Doherty v. Kansas City, 105 Mo.App. 173; Ball v. Neosho, 109 Mo.App. 692; Abbott v. Min Co., 11 Mo.App. 550. (2) The plaintiff admitted, while a witness, that the rock which fell and injured him was sagged at one end, so that he could put his fingers and had put his fingers between the rock and the roof proper. That he was engaged in work at the time, and that he voluntarily sat down beneath that rock to rest. He also stated that he believed the rock to be dangerous. His statement that he believed it to be dangerous is but another way of saying that he knew it to be dangerous. This instruction wholly ignores the theory of the case as made by the petition, and the plaintiff's evidence. The plaintiff admits he believed the place where he was working to be dangerous. Although the jury may have found that the place where the plaintiff was injured was so glaringly dangerous that an ordinarily prudent person would not have worked there, and also found plaintiff received no assurance of safety, yet under the instruction it would have been their duty to have found for the plaintiff, if they found the other facts stated to exist. Bank v Metcalf, 29 Mo.App. 384-395; Fisk v. Phelps, 30 Mo.App. 431; Land Co. v. Co., 87 Mo.App. 167; Evers v. Shumaker, 57 Mo.App. 454.
Higbee & Mills for respondent.
(1) The case went to trial without demurrer or objection to the sufficiency of the petition. Defendant expressly proved in the examination in chief of Albert Evans, its foreman and principal witness, that he learned of the dangerous condition of the roof the day before the accident and sent two employees to pull it down. The foreman testified he examined it at once. Plaintiff had proven, without objection, that Evans had been repeatedly told of this two or three days previously. "Defendant's counsel throughout the trial construed the petition as sufficiently tendering the issue of negligence." Covey v. Railroad, 27 Mo.App. 177; Hilz v. Railway, 101 Mo. 41; Stalzer v. Packing Co., 84 Mo.App. 573; Lumber Co. v. Calhoun, 88 Mo.App. 209; Johnson-Brinkman Co v. Bank, 116 Mo. 569. (2) The petition charges that defendant negligently and carelessly failed to remedy the defect, and that its pit boss negligently and carelessly assured plaintiff there was no danger, and directed him to work in the entry, and that plaintiff relied upon this assurance. It states a good cause of action. Covey v. Railway, 27 Mo.App. 176. (3) Plaintiff had the right "to look to his employer for the observance of all reasonable precautions, and his continuance in the service when such precautions have not been observed is rather to be attributed to confidence reposed in those to whose superior judgment he yields." The danger was not so patent as to charge plaintiff with contributory negligence in not leaving his work in order to avoid it. Bradley v. Railway, 138 Mo. 297; Adams v. Coal Co., 85 Mo.App. 493; Shortel v. St. Joseph, 104 Mo. 114; Connolly v. Printing Co., 166 Mo. 464; Hamilton v. Mining Co., 108 Mo. 364; Carter v. Baldwin, 107 Mo.App. 217. Sullivan v. Railway, 107 Mo. 66, approved in Bane v. Irwin, 172 Mo. 306. (4) It was defendant's duty to furnish plaintiff a safe place in which to work. Irmer v. Brewing Co., 69 Mo.App. 24; Hamman v. Coal Co., 156 Mo. 243; Doyle v. Trust Co., 140 Mo. 15. (5) The instructions given by the court for plaintiff follow approved precedents, and properly declare the law. This seems to be conceded by appellant. See instructions in Doyle v. Trust Company, 140 Mo. 1; Bradley v. Railway Company, 138 Mo. 293; Hamman v. Coal Company, 156 Mo. 232. (6) It is claimed instruction 2, ignores the theory of the petition. The instruction is a sufficient answer to this contention. There is no suggestion that the instructions are not warranted by the evidence. Hughes v. Railroad, 127 Mo. 447; Abbott v. Mining Co., 87 S.W. 110; Croco v. Railroad Company, 44 L. R. A. 285.
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 one thousand dollars 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 two hundred yards long and about eight 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: 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 twenty-five feet long and three or four 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, the 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 criticized 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 in 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 removed before sending plaintiff to work in said entry, but notwithstanding the dangerous condition of the roof of said entry as aforesaid, the said defendant negligently and carelessly failed to remove the said slate and dirt from the roof of said entry and defendant's pit boss negligently and carelessly ordered and directed plaintiff to work under the roof of said entry as aforesaid, where the same was in a dangerous condition, and assured plaintiff there was no danger in working there," etc. Defendant did not attack the...
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