Garard v. Manufacturers' Coal & Coke Co.

• Decision Date: 27 November 1907
• Parties: GARARD v. MANUFACTURERS' COAL & COKE CO.
• Court: Missouri Supreme Court

105 S.W. 767

207 Mo. 242

GARARD v. MANUFACTURERS' COAL & COKE CO.

Supreme Court of Missouri. Division No. 1.

November 27, 1907.

1. MASTER AND SERVANT — INJURIES TO MINER — SAFE PLACE.

Where defendant's superintendent directed plaintiff, a miner, to occupy a room adjoining a new entry, which afforded the only means of access to such room, and directed plaintiff to get empty coal cars at a switch in such entry leading to an adjoining room, defendant was estopped to claim, in an action for injuries to plaintiff by a fall of a part of the roof of the entry, that it was not liable because it had not as yet accepted and did not control such entry.

2. SAME — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to a miner by the fall of a portion of the roof of an entry, evidence held to require submission of defendant's negligence and plaintiff's contributory negligence to the jury.

3. DAMAGES — PHYSICAL INJURY — PERMANENCY — EVIDENCE.

In an action for injuries alleged to be permanent, the question asked of an expert medical witness as to what results were "likely" to follow was competent; the term "likely" being used synonymously with "reasonably expected," which might be substituted for "reasonably certain."

4. MASTER AND SERVANT — INJURIES TO SERVANT — MINERS — INSTRUCTIONS — MEASURE OF DUTY.

The court charged that, if plaintiff was in defendant's employ mining coal, it was defendant's duty to make and keep the entry in the mine where plaintiff would have to pass reasonably safe from the fall of overhanging rock, earth, and débris, and it was not plaintiff's duty to examine the roof to see that it was safe, he being entitled to rely on defendant to keep it safe, and that he had exercised reasonable care and diligence in that regard. Another paragraph was to the effect that if defendant or its agent in charge of the mine knew, or by the exercise of reasonable diligence would have known, that the roof of the entry under which plaintiff must pass was unsafe, and negligently failed to remove it or to make the place reasonably secure, and plaintiff, while in the discharge of his duties and in the exercise of reasonable care, was injured by the fall of overhanging rock, he was entitled to recover. Held. that the first paragraph taken in connection with the second was not erroneous as imposing on defendant the absolute duty to furnish plaintiff with a reasonably safe entry, instead of using ordinary care to keep the entry in a reasonably safe condition.

5. SAME.

Such instruction was not in conflict with another instruction that, if the entry had been opened for some 60 or 70 feet beyond the last room, or the room in which H. was mining, and had been paid for and received by defendant from the entrymen before plaintiff was employed to open a room off the entry beyond H.'s room, and plaintiff was so employed by defendant, then it was defendant's duty to use reasonable diligence to make and keep the entry in a reasonably safe condition where plaintiff would have to pass.

6. TRIAL — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where plaintiff, a miner, was injured by the fall of rock from an entry which had been made and paid for by defendant a month before plaintiff was employed, and which had been driven some distance beyond where plaintiff was required to work, an instruction that there was no obligation on defendant's part to remove all loose rock, earth, and other substance from the walls and roof of an entry being driven in its mine, and to support the roof as the opening of the entry proceeds, but the miners in opening such entry are required to protect themselves, etc., was inapplicable to the proof.

7. DAMAGES — EXCESSIVENESS.

Plaintiff, a miner 24 years of age and earning $4 a day, was injured by the fall of a portion of the roof of an entry. He suffered multiple fracture of both bones of one of his legs. The limb, as a result, was shortened, weakened, stiff, and there was also a loss of motion. Physicians testified that the injury was permanent, and would probably result in a club foot. Held, that a verdict for $5,000 was not so excessive as to authorize interference on appeal.

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

Action by A. H. Garard against the Manufacturers' Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Campbell & Ellison and Percy Werner, for appellant. Goode & Cooley and Higbee & Mills, for respondent.

GRAVES, J.

Action for personal injuries occurring about the 23d day of September, 1903. Plaintiff is a coal miner, and on that date had an experience in the business of about five years. Defendant is a Missouri corporation engaged in mining coal. Some three days prior to the injury plaintiff was employed by the defendant to mine coal in its mine in Adair county. From the evidence it appears that the main entries in this mine run north and south from the shaft. From this north main entry there had been driven at least two entries running towards the east. David Shaw was defendant's mine foreman, and put the defendant to work. At the same time he also employed and put to work one Scrivens. These parties were placed to work on the second east entry off from the north entrance. From this second east entry rooms were being "turned" or driven and worked to the north. When plaintiff was employed and placed to work, there had been three or four of these rooms "turned" or driven north, and either a fourth or fifth started. Some of the witnesses say that there were three rooms being worked, and some say four. They all agree that one Hamilton was working in the last opened room to the east, and that the plaintiff was placed to work in the room being opened just east of Hamilton, and that Scrivens was working in the room being opened just east of the plaintiff.

The petition is exceedingly lengthy and verbose, but the negligence charged therein is thus stated: "Plaintiff further states that defendant, wholly unmindful of its duties, had carelessly and negligently failed to trim the roof of said entry in which plaintiff was working as aforesaid, so as to work out loose boulders and rock therein, and failed to remove such loose boulders and rock, and carelessly and negligently left unsupported the walls and roof of said entry where plaintiff was working and passing to and from his work, and the roof over and above said entry, tramway, and car tracks, thereby leaving the same in a defective and unsafe condition, and, by reason thereof, the same were not reasonably safe, and said entry, tramway, and car track were not reasonably safe for the passage of plaintiff in going to and from his said place of work, and in the performance of his duties as aforesaid, and defendant carelessly and negligently failed to support the walls and roof of said entry with timber and props, or other suitable materials of sufficient quantity and strength, as to prevent the same from falling and caving in on the plaintiff while at work, and while engaged in the performance of his duties, and to prevent rock, coal, earth, and boulders from falling upon him, and carelessly and negligently failed to adopt any means to render said walls and roof reasonably safe, but, on the contrary, allowed said walls and roof to become and remain in a dangerous and defective condition by reason of rock and boulders and earth and coal therein becoming loosened and remaining loosened and liable to fall, by reason of all which said careless and negligent acts and conduct of defendant the defendant's said mine and said entry and the walls and roof thereof, and said tramway and said car track, were not reasonably safe, but were dangerous and defective, and that said dangerous and defective condition of said mine and said entry, and the walls and roof thereof, and of said tramway and car track, as hereinbefore set forth, was then and there known by defendant, or could have been known by the defendant by the exercise of ordinary care and prudence on its part, in time to have fixed and repaired the same, so that the said walls and roof, and said entry, and said tramway and car track, and when plaintiff was engaged in the discharge and performance of his duties as the employé of defendant, under his aforesaid contract, and was in line of his duty and at a point at which it was the duty of defendant to keep and maintain said walls and roof, entry, tramway, and car track and its said mine in a reasonably safe condition for the protection of plaintiff while coming and going to his said place of work, and while he was in the performance of his duties as aforesaid, and without fault or negligence on his part, the wall and roof of said entry which was above and over said tramway and car track suddenly and without warning to plaintiff gave way, and fell and caved in, and a great rock and mass of earth and coal, constituting a part of said wall and roof, fell on the plaintiff, striking him on the body and legs, and bruised and crushed the flesh of his right leg, foot, and ankle, and broke and crushed the bones of his right leg, and bruised, broke, and crushed the bones of right ankle and foot."

By paragraph 1 of its answer, the defendant admits its corporate capacity, and denies each and every other allegation of the petition. The second paragraph is a plea of contributory negligence, thus stated: "And for further answer, defendant says that whatever injury plaintiff sustained at the time and place stated in said petition was occasioned by and resulted from his own fault and negligence directly contributing thereto in voluntarily placing himself or remaining in a position of danger after notice and warning thereof."

Upon a trial, plaintiff was awarded a verdict by a jury in the sum of $5,000, upon which judgment was entered. After unsuccessful motion for new trial, defendant appeals. Both defendant and plaintiffs file abstracts of the evidence. A comparison of the...