Gambino v. Manufacturers' Coal & Coke Company
| Decision Date | 03 February 1914 |
| Citation | 164 S.W. 264,180 Mo.App. 643 |
| Parties | JOSEPH GAMBINO, Respondent, v. MANUFACTURERS' COAL & COKE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Knox Circuit Court.--Hon. Charles D. Stewart, Judge.
AFFIRMED. CAUSE CERTIFIED TO SUPREME COURT.
AFFIRMED. CAUSE CERTIFIED TO SUPREME COURT.
Higbee & Mills and Campbell & Ellison for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence. Plaintiff, while a witness, stated "the rock looked bad to him." He had known it was dangerous for two days. There was no promise of repairs or assurance of safety. Plaintiff is an experienced miner. His own evidence conclusively shows that he failed to take ordinary care to learn the imminence of the dangers which lurked in the roof or that he was carelessly indifferent to such dangers, in either of which events he is not entitled to recover. Roberts v. Company, 166 Mo. 378; Roddy v Company, 104 Mo. 250; Watson v. Company, 25 Mo.App. 371; Steinhauser v. Spraul, 127 Mo. 563; Brady v. Company, 206 Mo. 527; Williams v Company, 119 Mo. 324. (2) The court erred in giving plaintiff's instruction number one. This instruction told the jury that it was "Defendant's duty to use reasonable diligence to keep said entry and neck reasonably safe." The evidence on the part of the plaintiff tended to show that it was the defendant's duty to take care of the room neck. While the evidence on the part of the defendant tended to show that it was the duty of the plaintiff to take care of the dangerous condition in the roof. The instruction, therefore, told the jury that the evidence of defendant was not true. The question as to whose duty it was to take care of the roof was one of fact for the jury. (3) The court erred in permitting plaintiff to introduce the character of proof offered by him for the purpose of proving that it was defendant's duty to take care of the room neck. Krueger v. Company, 84 Mo.App. 366. (4) The court erred in giving plaintiff's instruction number two. This instruction purported to cover the entire case and ignored the question that plaintiff was engaged in removing the rock and also ignores the defendant's evidence that it was plaintiff's duty to inspect and care for the room neck and it authorized the jury to return a verdict for the plaintiff, although they may have believed he was actually engaged in removing the rock or that he was under the duty to inspect and care for the passage way. In fact it told the jury that it was the defendant's duty to care for the passage way and "it was not the duty of plaintiff to examine said roof." McMahon v Company, 132 Mo. 641; Raybourn v. Phillips, 160 Mo.App. 534; Hill v. Company, 140 Mo. 433; Scanlon v. Gulick, 199 Mo. 449. (5) The court erred in permitting the plaintiff to prove the custom in the mine, because custom is not pleaded. Nivert v. Company, 232 Mo. 626.
J. A. Cooley and Jas. Dorian for respondent.
(1) The demurrer was properly overruled. There is no assumption of risk in the case, under the now well-established rule in this State, and under the evidence it is clear the court could not declare plaintiff guilty of contributory negligence. Garard v. Coal Co., 207 Mo. 242; Jewell v. Bolt & Nut Co., 231 Mo. 176; Garaci v. Hill-O'Meara Com. Co., 124 Mo.App. 709, followed in Bender v. Weber, 138 Mo.App. 547 and other cases; George v. Railroad, 225 Mo. 364; Obermyer v. Chair Co., 229 Mo. 97; Weldon v. Railroad, 93 Mo.App. 668; Rhea v. Railroad, 156 S.W. 1. (2) Plaintiff's instruction No. 1, is correct. This room neck had been "turned" and a room, that is, a working place, opened from it and worked back thirty-five or forty feet when plaintiff was employed to work there. Clearly, as a matter of law, it was part of the working place furnished by the master and which it was its legal duty to maintain, and which duty it could not shift, nor could a risk arising from failure to discharge it be assumed by the servant. Defendant's sixth instruction expressly recognizes and tells the jury that it was defendant's duty to maintain its reasonable safety. That it neglected to do so it concedes. Garard v. Mfg. Coal & Coke Co., 207 Mo. 242; Hanley v. Cal. Bridge & Const. Co., 47 L. R. A. 597; Highland Boy Gold Mining Co. v. Pouch, 124 F. 148. (3) No error was committed in the character of evidence admitted to prove that it was the master's duty to take care of the room neck. Rowden v. Mining Co., 136 Mo.App. 376. (4) It is only necessary to plead a rule or custom when it is proffered or relied on as the basis of recovery. Nivert v. Company, 232 Mo. 626; Brady v. Company, 206 Mo. 509. When it is offered for probative purposes it is not necessary to plead it. Brunke v. Tel. Co., 115 Mo.App. 36; Spencer v. Bruner, 126 Mo.App. 94; Gordon v. Railroad, 222 Mo. 516; White v. Railroad, 84 Mo.App. 411; Hunt v. Lead Co., 104 Mo.App. 377; Kane v. Company, 93 Mo.App. 209; Warren v. Townley Mfg. Co., 155 S.W. 850. (5) The giving of plaintiff's instruction No. 2, was not reversible error. This instruction required the jury to find among other things that plaintiff was at the time of his injury in defendant's employ mining coal--and that while in the discharge of his duty (as a coal miner) and while in the exercise of ordinary care on his part he was injured, and that the injury was due to defendant's negligence specified. It was not necessary that it or any of plaintiff's instructions should submit the issue of contributory negligence, or assumption of risk, or any other of defendant's affirmative defenses--especially as all these defenses were fully submitted in defendant's instructions. Meily v. Railroad, 215 Mo. 567; Bowman v. Coal Co., 168 Mo.App. 703; Obermeyer v. Chair Co., 229 Mo. 97; Burdoin v. Trenton, 116 Mo. 358; Moore v. Railroad, 157 Mo.App. 53; Raybourn v. Phillips, 160 Mo.App. 534.
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 eight and one-half or nine 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 room neck, by the falling of a large rock, in the form of a slab, from the roof thereof.
It appears that there had been a fall from this roof some time before, of which plaintiff was aware; that two days prior to the accident, plaintiff, who it seems could not speak or understand English, indicated to defendant's foreman, by motioning, that the roof at this place was in bad condition, requesting that it be fixed. Plaintiff was injured at about two o'clock in the afternoon, about an hour before his regular quitting time. His testimony is to the effect that, at the time of his injury, he had finished putting up some props in the room in which he had been working and had some coal to load into a car; that he was through with his pick and sledge, and that he started to go out of the room through the room neck to get a drink of water, taking the pick and sledge with him. There was testimony to the effect that it was customary for plaintiff to take his tools out with him upon quitting work in the afternoon; the practice being, it seems, for a miner to drill and load powder holes at the end of the day, and to remove his tools from the room upon quitting work. Plaintiff's pick and sledge were found lying near him after the rock fell and caught him.
On behalf of defendant, its foreman testified that when plaintiff called his attention to the portion of the roof in question, he "employed" plaintiff to remove the rock, agreeing to pay him for his time in so doing. It appears that the miners were paid according to the quantity of coal mined by each, and that sometimes they would be separately engaged to do "dead work" of this character. And there was testimony that scratches were seen in the roof of the room neck near the rock, after the latter had fallen, and which looked like fresh pick marks. Plaintiff, however, denied that he was told to remove the rock; and testified that he was not undertaking to do so when injured. And it is not denied that he had never theretofore been employed to do such "dead work," except to shovel out some loose rock.
I. Of the demurrer to the evidence.
There can be no doubt that the room neck in question, furnishing a means of ingress and egress to and from the room in which plaintiff was working, was in the care and keep of the master, and that it owed the duty to its servant to...
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