Graves v. United States Smelting Co.

• Decision Date: 14 February 1917
• Docket Number: No. 1906.,1906.
• Parties: GRAVES v. UNITED STATES SMELTING CO.
• Court: Missouri Court of Appeals

192 S.W. 472

GRAVES v. UNITED STATES SMELTING CO.

No. 1906.

Springfield Court of Appeals. Missouri.

February 14, 1917.

Rehearing Denied March 3, 1917.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Obid Graves against the United States Smelting Company. Judgment for plaintiff, and defendant appeals. Reversed.

Lyons & Smith, of Kansas City, for appellant. J. D. Harris, of Carthage, for respondent.

FARRINGTON, J.

Plaintiff recovered a judgment in the sum of $250 on account of personal injuries alleged to have been sustained by him due to the negligence of the defendant in carelessly failing to sound, inspect, and trim the roof of a drift in its mine, and that because of its failure to fulfill its duty in this respect a rock fell out of the roof and struck plaintiff on the arm, cutting, bruising, and lacerating the same. The answer was a general denial, coupled with pleas of contributory negligence and assumption of risk.

A number of errors are assigned, but under the view we take of the case only one need be discussed, which is that the demurrer to plaintiff's evidence should have been sustained. We think this contention of the appellant should be upheld because the evidence introduced wholly fails to show that the negligence charged was the proximate cause of the injury; that while plaintiff's evidence does show a failure on defendant's part to properly sound, inspect, and trim the roof of the drift, yet his evidence fails to show that the stone which struck him fell from that portion of the mine where there had been a failure in duty.

There were but two eyewitnesses to the accident, the plaintiff, and his helper, Robinson, and neither of them knew whether the rock fell from the roof of the drift or from the wall or edge of what is called in the evidence the "goat path." If it fell from the roof, the plaintiff made a case which should go to the jury on the question of negligence, but if it fell from the edge, roof, or wall of the goat path it came from a place that plaintiff and his helper were themselves engaged in making safe which was not such a place as the safe place rule applies to in the law of master and servant.

In this mine an old drift had been run, and on the wall or side of this drift they had begun to slab off a portion of the same by digging into the wall from the bottom and slabbing up and off the rock, dirt, and boulders. This formed a runway on the side of the wall, which was called the goat path. The plaintiff was a machine man whose duty it was to drill holes so that this rock and dirt could be blasted out along the side of this wall in the drift or from the wall and side of the goat path. Before noon of the day of the injury the foreman had told plaintiff to put in a blast and shoot down a hanging slab or rock, so that it would be safe for the plaintiff and the men to work thereunder. This was done at noon. Plaintiff came back and worked something like half an hour, and was at the time of his injury picking out and pulling down the loose material left by the blast put off at noon. He testifies that he was out near the edge of the goat path, picking with his pick loose rock from above him, and from his testimony his position was such that a rock might fall from the roof and strike him on the arm or might fall from the roof or edge of the goat path and strike him as it did. As stated before, if this rock came from the roof of the mine — and this was the only question that was put to the jury in plaintiff's instructions — the defendant would be liable because it was not plaintiff's duty to sound, inspect, and trim the roof of the mine. It was his duty, however, as a machine man, after having shot down the slab in the roof or edge of the goat path, to clear up the effect or result of the shot in the immediate vicinity of the shot which he had put in, and was intended to clear up the ground at that point. In other words, so far as the roof or edge or wall of the goat path was concerned, it was his duty (and he was at that time performing it) to make it safe so that a boulder falling on him from that location, caused by the blast which he had put in, would be the result of an accident or the result of a risk incident to the business in the duty of making that particular place safe.

To reiterate, if the rock or boulder which struck plaintiff came from the roof above him in the drift, there is sufficient evidence to take the question to the jury on defendant's negligent failure to sound, inspect, and trim the same; but if it came...