Goode v. Central Coal & Coke Co.

• Decision Date: 25 November 1912
• Citation: 151 S.W. 508,167 Mo. App. 169
• Parties: GOODE v. CENTRAL COAL & COKE CO.
• Court: Missouri Court of Appeals

151 S.W. 508

167 Mo. A. 169

GOODE v. CENTRAL COAL & COKE CO.

Kansas City Court of Appeals. Missouri.

November 25, 1912.

1. TRIAL (§ 139) — PROVINCE OF JURY — REJECTING EVIDENCE.

Evidence may be rejected by the court as unworthy of belief only when opposed to the plain, undisputed physical facts; and when they are disputable it must go to the triers of fact.

2. PLEADING (§ 433) — CONFORMITY TO PLEADINGS AND EVIDENCE.

In an action for a miner's death, in which it was claimed that decedent assumed the risk, because the rock fall occurred over his place of work, which he was bound to make safe, allegations of the petition that defendant negligently

permitted the entry "at or near the point" where defendant directed decedent to work to be dangerous, when considered with other allegations that decedent, when the rock fell on him, had left the place of work and gone westward, near the west wall of the entry, to eat, were sufficient, in absence of demurrer or motion, to sustain a judgment for plaintiff, based on proof that the rock fall did not occur directly over the place where decedent had been working.

3. PLEADING (§ 34) — CONSTRUCTION.

A pleading must be read as a whole.

4. PLEADING (§ 34) — OBJECTIONS AFTER JUDGMENT.

When first attacked after judgment, a pleading should be construed favorably to the pleader, and all doubts resolved in his favor.

5. DEATH (§ 14) — MASTER'S LIABILITY — NEGLIGENCE.

The cause of action accruing to the wife for her husband's death while in defendant's employment must be grounded on defendant's negligence in performing or omitting some duty it owed to decedent.

6. MASTER AND SERVANT (§ 124) — INSPECTION.

Rev. St. 1909, § 8447, requiring a daily inspection of the coal mines generating explosive gas, in which men are employed, does not require daily inspection of mines not generating explosive gases.

7. MASTER AND SERVANT (§§ 101, 102) — SAFE PLACE TO WORK.

An employer is required to exercise reasonable care to provide his servants with a reasonably safe place of work.

8. MASTER AND SERVANT (§ 286) — INJURIES — JURY QUESTION — NEGLIGENCE.

What constitutes reasonable care by an employer generally depends on the particular circumstances; and if they afford room for reasonable difference of opinion the issue of negligence is for the jury.

9. MASTER AND SERVANT (§ 124) — MASTER'S DUTY — INSPECT A PLACE OF WORK.

A coal mine owner was bound to inspect the mine roof at reasonable intervals, and, on discovering an insecure rock, to remove it for the protection of workmen required to be near it.

10. TRIAL (§ 253) — INSTRUCTIONS — IGNORING ISSUES.

An instruction, in an action for a coal miner's death by a rock fall that the sole question was whether decedent was killed while working at his place of work, and if he was killed in a part of the mine which was not his working place the jury should find for plaintiff, was inapplicable, as ignoring the question of whether the dangerous character of the work would have been discoverable by the employer in the exercise of ordinary care, and whether it did exercise ordinary care to discover it.

11. MASTER AND SERVANT (§ 265) — INJURIES TO SERVANT — RES IPSA LOQUITUR DOCTRINE.

The fact that a rock fell upon a coal miner was not sufficient proof of negligence by the mineowner in not inspecting the roof.

12. MASTER AND SERVANT (§ 265) — NEGLIGENCE.

One suing for a coal miner's death must show that the rock which fell on him should have been discovered, by the exercise of reasonable care by the employer, in time to have prevented the injury.

13. TRIAL (§ 296) — INSTRUCTIONS — CURE BY OTHER INSTRUCTIONS.

An erroneous instruction, which directed a verdict on the hypothesis stated, was not cured by contrary instructions.

14. DEATH (§ 93) — DAMAGES — PUNITIVE DAMAGES.

Rev. St. 1909, § 5427, providing that the jury, in an action for a wrongful death, may give such damages as they deem fair, with reference to the injuries resulting to the surviving parties, and "also having regard to the mitigating or aggravating circumstances" attending such wrongful act, does not authorize the award of punitive damages, except where the injury was wanton or reckless, so that they would be otherwise allowable.

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

Action by Catherine Goode against the Central Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

B. R. Dysart and Walter C. Goodson, both of Macon (Massey Holmes, of Kansas City, of counsel), for appellant. Dan R. Hughes, of Macon, and Burns, Burns & Burns, of Brookfield, for respondent.

JOHNSON, J.

Plaintiff's husband, a coal miner employed by defendant in one of its mines in Macon county, was killed in the mine by a large rock, which fell from the roof of an entry, and, claiming that his death was caused by negligence of defendant, plaintiff brought this action within six months after the death of her husband to recover the damages sustained by her in consequence of the alleged negligence.

The pleaded cause of action is founded on section 5426, Rev. Stat. 1909, and the damages claimed are those allowed in section 5427. The answer, in addition to a general denial, contains pleas of assumed risk and contributory negligence. Plaintiff prevailed in the circuit court, where she recovered a judgment of $5,000.

The husband of plaintiff, in company with other miners, was engaged in the work of "drawing pillars." In the preceding stages of the work in that part of the mine, the coal had been removed from entries and rooms, and thick pillars or walls of coal had been left standing, for the purpose, in part, of supporting the roof. Afterward these pillars were removed to obtain the coal in them. Plaintiff and his fellow servants had been working eight days mining the coal in one of such pillars, and just before the event in controversy had been loading coal loosened by blasts from the pillar into tram cars.

The parties agree that it was the duty of miners thus employed to attend to the safety of the place in which they were working; and the great weight of the evidence is to the effect that defendant owed such miners the duty of reasonable care to keep all other places, such as entries and the like, in a reasonably safe condition. The death of plaintiff's husband occurred at the noon hour, while he and his companions were at lunch. According to the evidence of plaintiff, the men had withdrawn from the place of their work to a place, perhaps, 20 feet distant therefrom and in the entry, and were seated eating their lunches, which they had brought with them, when a rock, 12 or 15 feet long, four feet wide, and 2 or 3 feet thick, fell from the roof, killing the husband of plaintiff.

The main dispute in the evidence is over the fact of the position of this rock before its fall. If, as witnesses for plaintiff insist, the rock was not over the place where the men were at work before noon,...