Gambino v. Manufacturers' Coal & Coke Co.

• Decision Date: 03 February 1914
• Citation: 180 Mo. App. 643,164 S.W. 264
• Parties: GAMBINO v. MANUFACTURERS' COAL & COKE CO.
• Court: Missouri Court of Appeals

164 S.W. 264

180 Mo. A. 643

GAMBINO v. MANUFACTURERS' COAL & COKE CO.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. MASTER AND SERVANT (§ 118) — INJURIES TO SERVANT — MINING — SAFE PLACE — ROOM NECK.

Where a room neck in a mine furnishing access to the room in which a miner was engaged was in the care of the operator, it was its duty to exercise ordinary care to keep the roof of the neck safe and free from loose material.

2. MASTER AND SERVANT (§ 278) — INJURIES TO SERVANT — DEFECTIVE MINE — ACTIONABLE NEGLIGENCE.

Where a miner was injured by the fall of material from the room neck in charge of the operator who had been notified of the dangerous condition of the roof two days prior thereto, and had been requested to repair the same, but had failed to do so, and the injury occurred as plaintiff was passing through the neck into a mine entry at the close of his work, the facts established a prima facie case of actionable negligence on the part of the operator.

3. MASTER AND SERVANT (§ 211) — INJURIES TO SERVANT — MINERS — FALLING ROCK — ASSUMED RISK.

Where the room neck in a mine furnishing access to a room in which plaintiff was employed was in the care of the operator, plaintiff did not assume the risk of danger from falling rock from the neck as one of the risks of the employment.

4. MASTER AND SERVANT (§ 285) — INJURIES TO SERVANT — SAFE PLACE — QUESTION FOR JURY.

In an action for injuries to a miner by the fall of material from the roof of a room neck in a mine, whether he was injured in passing through the neck from his room to a passageway, or was employed to take down the loose rock from the neck, and was injured while so doing, held for the jury.

5. MASTER AND SERVANT (§ 226) — INJURIES TO SERVANT — ASSUMED RISK.

A servant only assumes such risks as are ordinarily incident to his employment after the master has performed his whole duty as to furnishing a reasonably safe place to work and reasonably safe appliances, and does not assume risks arising from the master's negligence.

6. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — MINERS — CONTRIBUTORY NEGLIGENCE.

Where, in an action for injuries to a miner by the fall of material from the roof of a room neck, it appeared that while plaintiff knew of the dangerous condition of the roof, it did not appear that it was obvious to him that the roof threatened immediate danger, so that a reasonably prudent man in his situation would have concluded that he could not pass under the roof without subjecting himself to danger of immediate injury, whether he was negligent in passing thereunder at the time the material fell was for the jury.

7. APPEAL AND ERROR (§ 1050) — RECEPTION OF EVIDENCE — PREJUDICE.

Where a room neck leading to the place where plaintiff was employed in defendant's mine had been completed and received by defendant so that it was bound to use reasonable care to keep the roof of the neck safe, defendant was not prejudiced, in an action for injuries to plaintiff by the fall of material from the neck, by the admission of evidence that it was defendant's duty to timber the neck, or otherwise see to the safety of the roof.

8. MASTER AND SERVANT (§ 291) — INJURIES TO SERVANT — DEFECTIVE MINE — INSTRUCTIONS.

In an action for injuries to a miner by the fall of material from a room neck, an instruction that it was defendant's duty to use reasonable diligence to keep the neck in a reasonably safe condition was not objectionable because of evidence that it was plaintiff's duty to care for the particular part of the roof that fell.

9. MASTER AND SERVANT (§ 296) — INJURIES TO SERVANT — MINERS — DEFECTIVE ROOM NECK — INSTRUCTIONS.

Where, in an action for injuries to a miner by the fall of a portion of the roof of a room neck, plaintiff's injury was not due to any failure to discover defects, but to remedy one already discovered and pointed out, an instruction that it was not plaintiff's duty to examine the roof to see that it was safe, but he was entitled to rely on defendant to see that the passage was kept reasonably safe, etc., was not erroneous, since the fact that a servant takes ordinary precautions for his own safety does not absolve the master from the performance of his duties with respect to proper inspection and examination of such places as are within his care and keeping.

10. MASTER AND SERVANT (§ 296) — INJURY TO SERVANT — MINES — FALL OF MATERIAL — INSTRUCTIONS.

Where plaintiff was injured by the fall of material from a room neck, the roof of which he knew to be defective, an instruction that it was not plaintiff's duty to examine the roof to see that it was safe, but that he could rely on defendant to keep the passageway reasonably safe, and that defendant had exercised due care in that regard, did not authorize the jury to believe that plaintiff might presume that the roof was safe, notwithstanding he knew to the contrary, and go blindly about his work regardless of the danger, but only that, under the circumstances, he was not required to make minute examination to discover the existence and imminence of the danger.

11. MASTER AND SERVANT (§ 291) — INJURIES TO SERVANT — INSTRUCTIONS — ISSUES.

Where, in an action for injuries to a miner by the fall of material from a room neck, defendant did not plead as a defense that plaintiff, after notifying defendant of the defect, had been

employed to make the necessary repairs, the fact that there was evidence introduced to that effect did not render an instruction that it was not plaintiff's duty to examine the roof to see that it was safe, but he could rely on defendant to keep the passageway reasonably safe, and that it had exercised due care in that regard, defective as omitting reference to the claim that plaintiff was chargeable with the duty of repairing the neck.

12. MASTER AND SERVANT (§ 264) — INJURIES TO SERVANT — MINES — DANGEROUS ROOF — ASSUMED RISK.

Where plaintiff was injured by the fall of a portion of the roof of a room neck in a mine, evidence in support of the defense that the injury occurred while plaintiff was actually engaged in taking down the loose rock was available to defendant under its plea of assumed risk, though it was not specially pleaded.

13. TRIAL (§ 296) — INSTRUCTIONS — CURING ERROR.

The omission of the court to refer to a particular defense in plaintiff's instruction submitting the case to the jury was cured by another instruction, given at defendant's request, whereby the jury were specifically told that if they believed that plaintiff was injured while attempting to take down certain dangerous rock in a room neck of a mine, as plaintiff claimed, their verdict should be for defendant.

14. APPEAL AND ERROR (§ 1033) — REVIEW — INSTRUCTIONS.

An objection to plaintiff's instruction on contributory negligence that while it was "sound enough in a proper case," there was no evidence on which to base it was unsustainable, since, if there was no such evidence, then plaintiff was not guilty of contributory negligence.

15. DAMAGES (§ 132) — EXCESSIVENESS — PERSONAL INJURIES.

Plaintiff, while working in defendant's mine was injured by the fall of a portion of the roof of a room neck. His leg was broken at the ankle so that the bone protruded, and the ankle was badly crushed. The injury was difficult to treat, and the limb was kept in a cast for three months after the swelling had been reduced so that it could be so incased. Plaintiff's physician, who was the only medical witness, testified that the limb would be permanently impaired, and that there would always be an enlargement about the ankle, with a stiffness and weakness in the joint. Plaintiff suffered much pain, and had not been able to do any work at the time of the trial, which was two years and six months after the accident. He was 43 years of age at the time of the injury, healthy and able-bodied, and testified that he had been a miner for 14 years, and that his earnings amounted to from $50 to $75 every two weeks. Held, that a verdict awarding him $4,500 was not excessive.

Nortoni, J., dissenting.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Action by Joseph Gambino against the Manufacturers' Coal & Coke Company. Judgment for plaintiff, and defendant appeals. Affirmed. Case transferred to Supreme Court on division.

F. H. McCullough, of Edina, and Higbee & Mills, and Campbell & Ellison, all of Kirksville, for appellant. J. A. Cooley, of Kirksville, and Jas. Dorian, of Edina, for respondent.

ALLEN, J.

This is an action for damages for personal injuries sustained by plaintiff while in the defendant's employ, alleged to have accrued to him through the negligence of defendant. Plaintiff recovered, and the defendant appeals.

At the time of plaintiff's injury, to wit, December 18, 1908, defendant company owned and operated a coal mine in which plaintiff was employed by it as a miner. The mine was operated by "driving" certain "entries," from the sides of which "rooms" were opened in which the miners worked. In opening such a room, a passageway would be cut a few feet in length, which was termed the "room neck," and which was thereafter utilized in passing to and from the room which would afterwards be opened beyond it. It seems that but one miner worked in each room, working at the "face" of coal, and mining out the latter as far back as practicable. Upon the occasion in question plaintiff had been working in such a room. The room neck or passageway, constituting the entrance thereto was, it appears, of about the usual length, to wit, seven feet, was about nine feet in width, and approximately 8½ or 9 feet high. It appears that the usual width of such a passageway was seven feet, and that it was ordinarily about that high; this one being, it seems, somewhat wider and higher than usual. A track was laid in this room neck, upon which coal cars were drawn, and which connected with the main track in the entry. Plaintiff was injured while in this...