Goode v. Central Coal & Coke Co.
| Decision Date | 06 April 1914 |
| Citation | 166 S.W. 844,179 Mo.App. 207 |
| Parties | CATHERINE GOODE, Respondent, v. CENTRAL COAL & COKE CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Macon Circuit Court--Hon Nat. M. Shelton, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
B. R Dysart and W. C. Goodson for appellant.
Dan R Hughes and Burns, Burns & Burns for respondent.
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. 160, 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 fifteen to twenty-five feet north of his working place", was killed by a large and heavy rock falling from the roof upon him. The usual allegations of negligence were charged, in that defendant failed to support and protect the roof at that point.
Defendant demurred to the evidence in the trial court and insists here that it should have been sustained. It is conceded that if deceased was killed at his working place, there can be no recovery, since it was his duty to look to the safety of the roof at such place. We have examined the testimony in detail and find, that while it may fairly be said to preponderate in favor of defendant's theory that deceased was killed at his working place, thereby exonerating it from blame, yet there was sufficient evidence to the contrary to justify the trial court in leaving the question to the jury, and so we held when the case was here the first time.
Much of defendant's argument as to failure of plaintiff's proof has been based on the idea that she was compelled literally to sustain the allegation in her petition that deceased was killed between fifteen and twenty-five feet from his working place. There is no good reason for this. The substantial point of controversy was whether deceased was killed away from his working place, where defendant would be liable for the condition of the roof; or, at his working place, where he was supposed to look out for himself and it would not be liable. If he was not at his working place when killed, it is of no consequence whether he was five feet or twenty feet away. It is true that when one specializes in his petition he should be particular in his proof. But that 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....
To continue reading
Request your trial