Goode v. Central Coal & Coke Co.

• Decision Date: 06 April 1914
• Docket Number: No. 11,045.,11,045.
• Citation: 179 Mo. App. 207,166 S.W. 844
• Court: Missouri Court of Appeals
• Parties: GOODE v. CENTRAL COAL & COKE CO.

166 S.W. 844

179 Mo. App. 207

GOODE v. CENTRAL COAL & COKE CO.

No. 11,045.

Kansas City Court of Appeals. Missouri.

April 6, 1914.

Rehearing Denied May 4, 1914.

1. TRIAL (§ 139)—TAKING CASE FROM JURY— DEMURRER TO EVIDENCE.

A demurrer to plaintiff's evidence was properly overruled, where, though the preponderance of the evidence favored defendant, there was sufficient evidence to the contrary to justify submission to the jury.

2. MASTER AND SERVANT (§ 264)—INJURIES TO SERVANT—ACTIONS—ISSUES, PROOF, AND VARIANCE.

Where the substantial point of controversy was whether a coal miner was killed at his working place, where he was required to repair the roof, or elsewhere, an allegation in the petition that he was killed between 15 and 25 feet from his working place did not require proof that it was within the exact distances specified.

3. PLEADING (§ 387)—ISSUES, PROOF, AND VARIANCE — VARIANCE BETWEEN ALLEGATIONS AND PROOF.

While one who specializes in his petition should be particular in his proof, the rule refers to the substance of the charge and not to matters of no consequence which could not affect the meaning of what is alleged.

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

An instruction, in an action for the death of a coal miner, which submitted whether deceased was killed by a fall of rock because of defendant's negligence, without reference to whether it was at his working place, where he was required to repair the roof, which was the main point in controversy, was erroneous.

5. MASTER AND SERVANT (§ 293)—INJURIES TO SERVANT—ACTIONS—INSTRUCTIONS.

In an action for the death of a coal miner, an instruction submitting to the jury the question whether deceased was killed where defendant was required to repair the roof, without defining such duty in that or any other instruction, was erroneous.

6. APPEAL AND ERROR (§ 665)—RECORD—ABSTRACTS —CONCLUSIVENESS.

Under Rev. St. 1909, § 2048, providing that if appellant's abstract is unsatisfactory the respondent shall file an additional one, a respondent who failed to challenge the correctness of the instructions in appellant's abstract by her additional abstract could not object that they were not the instructions given.

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, and Burns & Burns, of Brookfield, for appellant. Hughes & Hughes, of Macon, for respondent.

ELLISON, P. J.

Plaintiff's action is to recover damages for the death of her husband, who was a miner engaged in mining coal for defendant. The judgment in the trial court was for the plaintiff. This is the second appeal. The first is found reported in 167 Mo. App. 169, 151 S. W. 508, to which we refer for a general statement of the case. The petition charges that deceased, while eating his noon lunch "at a point in the mine from 15 to 25 feet north of...