Garard v. Manufacturers' Coal & Coke Co.
| Citation | 105 S.W. 767,207 Mo. 242 |
| Parties | A. H. GARARD v. MANUFACTURERS' COAL & COKE COMPANY, Appellant |
| Decision Date | 27 November 1907 |
| Court | United States State Supreme Court of Missouri |
Appeal from Adair Circuit Court. -- Hon. Nat. M. Shelton, Judge.
Affirmed.
Percy Werner and Campbell & Ellison for appellant.
(1) Defendant was not guilty of the negligence charged. The rock fell in a new entry not yet taken over by defendant. The rule as to "safe place to work" does not apply to newly excavated portions of a mine. White's "Personal Injuries in Mines," sec. 401. (2) Plaintiff in unnecessarily lingering for several minutes under the overhanging rock in the roof of the entry, when he heard it "chipping," knew that its fall was imminent, was warned by one fellow-servant and himself warned another, when he had ample time to get to a place of safety, and had no business where he remained, was guilty of negligence which as a matter of law bars a recovery herein. Watson v. Kansas & Texas Coal Co., 52 Mo.App. 366, citing Olsen v McMullen, 24 Minn. 94; Walsh v. Railroad, 27 Minn. 367; Lenk v. Kansas & Texas Coal Co., 80 Mo.App. 374; Culver Const. Co. v. McCormack, 114 Ill.App. 655; Kilroy v. Foss, 161 Mass. 138; Simmons v. C. & I. R. Co., 110 Ill. 340; Bunt v Sierra Buttes Gold Min. Co., 24 F. 847, affirmed, 138 U.S. 483; Knight v. Cooper, 36 W.Va. 232; Evans v. Chessmond, 38 Ill.App. 615; Fowler v. Pleasant Valley Coal Co., 16 Utah 348; Colorado Coal & T. Co v. Carpita, 6 Colo.App. 248; "Personal Injuries in Mines," White, secs. 263 and 264. (3) The court erred in admitting in evidence the opinion of a physician to the effect that "of permanent effects the only one that could happen would be club foot, what we call talapes foot." Damages can only be recovered for injuries which are reasonably certain to ensue. 1 Joyce on Damages, sec. 244, citing: Covell v. Railroad, 82 Mo.App. 180; Chilton v. St. Joseph, 143 Mo. 192; Bigelow v. Railroad, 48 Mo.App. 367. See, also: Strohm v. Railroad, 96 N.Y. 305; Tozer v. Railroad, 105 N.Y. 617; Atkins v. Railroad, 57 Hun 102; Briggs v. Railroad, 177 N.Y. 59; Collins v. Janesville, 99 Wis. 464. (4) Plaintiff's first instruction was erroneous. The duty of a master to make a place reasonably safe is not absolute; he is only bound to exercise ordinary care to that end. Dunn v. Nicholson, 117 Mo.App. 374; Armour & Co. v. Russell, 144 F. 614; Orr v. Waterson, 228 Ill. 138. (5) The verdict was excessive.
Goode & Cooley and Higbee & Mills for respondent.
(1) Defendant's negligence is beyond question. The entry where the injury occurred had been driven by men employed by defendant for that purpose and paid for and received by the company from the entry-man, long before plaintiff was employed. It was and had to be used both by plaintiff and defendant, as well as other miners, as a passageway or roadway; defendant's agents had assumed jurisdiction of it, its foreman himself telling plaintiff he would see to timbering a portion on beyond where the injury occurred; actual knowledge of the dangerous condition at the place of the accident two or three days before it occurred, was brought home to defendant. Defendant's duty to maintain the entry in question, in a reasonably safe condition, and its negligence in not doing so, were abundantly shown. Plaintiff was not driving the entry, but was employed by defendant to open a room off this entry and had to use the entry as a roadway to his room. Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260; Boemer v. Lead Co., 69 Mo.App. 601; Bowerman v. Lackawana Mining Co., 98 Mo.App. 308; Smith v. Little Pittsburg Coal Co., 75 Mo.App. 177; Weston v. Mining Co., 105 Mo.App. 702; Wellston Coal Co. v. Smith, 65 O. St. 70, 55 L. R. A. 99; Tradewater Coal Co. v. Johnson (Ky.), 61 L. R. A. 161. (2) Plaintiff was not guilty of contributory negligence. The rock that fell upon him was not the one that had been heard chipping, nor was it connected with that one, being in another and different passageway. This question was properly submitted to the jury. Allen v. Railroad, 183 Mo. 426; Hamman v. Central Coal & Coke Co., 156 Mo. 243; Schroeder v. Railroad, 108 Mo. 322; Baird v. Railroad, 146 Mo. 280; Meyers v. Railroad, 99 Mo.App. 363; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Adams v. Kansas & Texas Coal Co., 85 Mo.App. 486; Bradley v. Railroad, 138 Mo. 293; Charlton v. Railroad, 200 Mo. 440; Butz v. Construction Co., 199 Mo. 287; Smith v. Little Pittsburg Coal Co., 75 Mo.App. 177; Thompson on Negligence, secs. 173, 188, 189, 138, 198, 199; Dodge v. Mfg. & Coal & Coke Co., 115 Mo.App. 501. Defendant's demurrer to the evidence at the close of the case was waived, and the question whether the case should have gone to the jury must be determined in the light of all the evidence. Fry v. Railroad, 200 Mo. 377. (3) There was no error in the admission of the evidence complained of. "Likely" is equivalent to reasonably certain. Besides, no harm could have resulted from the admission of that evidence, even if improperly admitted, and defendant not having objected till after the question was answered and no motion to strike out being made nor instruction requested withdrawing it from the jury, the objection is waived. Holden v. Railroad, 108 Mo.App. 672; O'Keefe v. Railroad, 101 S.W. 1147; Reno v. Kingsbury, 39 Mo.App. 244; Wilkinson v. Ins. Co., 54 Mo.App. 664; Young v. Hudson, 99 Mo. 106; Julian v. Calkins, 85 Mo. 206; Hogan v. Railroad, 150 Mo. 50; Grocery Co. v. Smith, 74 Mo.App. 424; State v. Marcks, 140 Mo. 669; State v. Hope, 100 Mo. 347; Hollenbeck v. Railroad, 141 Mo. 105, citing Thompson on Trials, 715, 716; State v. Young, 153 Mo. 449; Roe v. Bank of Versailles, 167 Mo. 472. (4) (a) The instructions given by the court fairly and correctly submitted the case to the jury. Read together they fairly submitted all issues, and indeed were more favorable to defendant than it was entitled to. The instructions should all be read together. Pandjiris v. Hartmann, 196 Mo. 539; Moore v. Railroad, 193 Mo. 411; Deschner v. Railroad, 200 Mo. 333; Weston v. Mining Co., 105 Mo.App. 709; Gordon v. Burris, 153 Mo. 232. (b) Instruction 1, given for plaintiff, was not erroneous. Smith v. Fordyce, 190 Mo. 12; Bradley v. Railroad, 138 Mo. 307; Knight v. Sattler Lead & Zinc Co., 91 Mo.App. 574; Orr Nash v. Kansas City Hydraulic Pressed Brick Co., 109 Mo.App. 600; Schmitz v. Railroad, 119 Mo. 279; Houts v. Railroad, 108 Mo.App. 692; O'Mellia v. Railroad, 115 Mo. 217; Gardner v. Railroad, 135 N.W. 96. (c) Plaintiff's instruction 2 is a correct declaration of the law. Schmitz v. Railroad, 119 Mo. 269; Holden v. Railroad, 108 Mo.App. 665; Sidekum v. Railroad, 93 Mo. 406; Reynolds v. Railroad, 189 Mo. 408; Mitchell v. Railroad, 97 Mo.App. 417; Everly v. Railroad, 96 Mo.App. 371; Chaplin v. Railroad, 114 Mo.App. 256; O'Keefe v. Railroad, 101 S.W. 1144. (d) No complaint can be made as to instruction 3. It follows the testimony, and is proper, even on the testimony of defendant's witness, and much more on that of plaintiff's. (5) The verdict is not excessive. It is not such as to shock the conscience, but is fair and reasonable, and having met the approval of the trial court, will not be interfered with by the appellate court. And appellant in its abstract does not set out the testimony of the physicians on this point, and is not in position to ask this court to review this question. Henderson v. Kansas City, 177 Mo. 492; O'Connell v. Railroad, 106 Mo. 482; Devoy v. Railroad, 192 Mo. 197; Phippin v. Railroad, 196 Mo. 321; Nichols v. Plate Glass Co., 126 Mo. 55, a case similar to this; Perrette v. Kansas City, 126 Mo. 238.
Action for personal injuries occurring about the 23rd 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...
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