Haggard v. McGrew Coal Co.

• Decision Date: 02 February 1918
• Docket Number: No. 17902.,17902.
• Citation: 200 S.W. 1072
• Parties: HAGGARD v. McGREW COAL CO.
• Court: Missouri Supreme Court

200 S.W. 1072

HAGGARD v. McGREW COAL CO.

No. 17902.

Supreme Court of Missouri. In Banc.

February 2, 1918.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Gentry W. Haggard against the McGrew Coal Company, a corporation. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

Aull & Aull, of Lexington, and Bird & Pope, of Kansas City, for appellant. Charles Lyons and Horace F. Blackwell, both of Lexington, for respondent.

GRAVES, J.

Action for personal injuries. The trial court sustained a demurrer to plaintiff's evidence, whereupon plaintiff was forced to take a nonsuit, which by proper motion he asked the court to set aside. Being refused this relief and judgment going against him, he has appealed to this court. The petition, eliminating formal parts and the description of plaintiff's injuries, is short, and inasmuch as this petition charges some negligent acts, which acts are not averred to be the cause of the injury, we think best to set out the petition. We can thus better determine just what acts of negligence have a causal connection with the injury. The petition reads:

"That on or about August 31, 1911, plaintiff was employed by said defendant and was put to work as a shoveler in the said Graddy mine of said defendant. That in said Graddy mine said defendant used an electrical mining machine, and in operating said machine said defendant employed, at the time plaintiff was injured, a force of five men, consisting of Thomas Scott, who was in charge of the machine, Frank Jennings, who was acting as the rail or jack setter, Taylor Brooks and plaintiff, who were shovelers, and Thomas McGinnis, who was the machine boss. That the regular rail or jack setter was George Bray, but on September 1, 1911, he was absent and said defendant carelessly and negligently put in his place said Frank Jennings, an inexperienced man, and because of his lack of experience, not a fit person for said work of rail or jack setter. That one of the duties of a rail or jack setter was to see that the roof of the mine at or near the place where said electric mining machine was at work was in a reasonably safe condition, which he was to do by examining, pulling upon and sounding said roof, and if it became in a condition that it was not reasonably safe, to notify the man running said machine, and have said machine stop working until said defective roof of said mine was removed, and it was the duty of the defendant to exercise ordinary care to provide the plaintiff a reasonably safe place in which to do his work and not to expose him to a danger of injury while engaged at his work of shoveler, that could have been avoided by the exercise of ordinary care on the part of the defendant. And plaintiff states that as such shoveler he was required to shovel behind said electrical machine, and take down jacks attached to iron rails on which said machine ran and to uncouple said rails so as to enable the same to be replaced in front of said electrical mining machine, as said machine moved forward, and to remove and clear away dirt and other material from under the layers of coal, which was thrown down by said machine, preliminary to the mining and removing of such coal from said mine. And plaintiff states that on the 1st day of September, A. D. 1911, and at about the hour of 11 o'clock p. m. on said day, plaintiff in the discharge of his duty as such shoveler removed a jack from the rail of said electrical mining machine, and a part of the roof of said mine about 4 inches thick, 6 feet wide, and 10 feet long, and weighing about 1½ tons fell and struck him on the back, hips and shoulders, injuring him. * * * That said injuries were caused by the carelessness and negligence of said defendant and its said rail and jack setter, Frank Jennings, in carelessly and negligently failing and neglecting to exercise ordinary care to ascertain whether or not the said roof of said mine that fell upon the plaintiff was in a reasonably safe condition, and in failing to provide plaintiff a reasonably safe place in which to do his work. That by reason of his said injuries, plaintiff has been damaged in the full sum of $20,000, for which amount he demands judgment against the defendant, together with the costs of this suit."

The answer was: (1) A general denial; (2) a plea of contributory negligence; and (3) assumption of risk. Reply denied all new matter in answer. We quote the full petition for the reason that it is alleged in the first part thereof that the defendant was negligent in the employment of Frank Jennings as jack setter, because of his inexperience, but when it comes to charge the negligence which in fact caused the injury, this alleged negligence is omitted. The negligence which is charged to have caused the injury is: (1) "Failing and neglecting to exercise ordinary care to ascertain whether or not the said roof of said mine that fell upon plaintiff was in a reasonably safe condition;" and (2) "in failing to provide plaintiff a reasonably safe place in which to do his work."

Such are the issues, and the evidence can best be stated in the course of the opinion.

I. A clear conception of the issues to be determined always shortens an opinion. In the brief of appellant it is urged that the hiring of an inexperienced jack setter is a ground of negligence upon which plaintiff is entitled to recover. There is a statement in the petition (the first portion thereof) to the effect that the defendant negligently employed an inexperienced jack setter in the place of the regular jack setter. But when the plaintiff gets to the point of stating just what negligence of the defendant occasioned his injury, he fails to include the alleged negligence of employing an inexperienced jack setter. This ground of negligence is therefore beyond the issues made by the pleadings, and must be dismissed from consideration. We have so recently and so fully gone over this exact question that a mere reference to the case will suffice. State ex rel. National Newspapers' Association v. Ellison et al., 176 S. W. 11.

II. In what we have said in paragraph 1, supra, we do not mean to say that evidence of the inexperience of Jennings, the jack setter, may not be competent, under the causal negligence pleaded, but what we do mean is that as an independent act of actionable negligence, it has not been so pleaded as to avail the plaintiff. Whether evidence of the inexperience of the jack setter may be competent upon the causal negligence pleaded we will discuss later. If competent at all, it would be on the alleged failure of defendant to ascertain the condition of the roof. But, as stated above, this matter, if necessary, can be determined in the proper place.

III. The real question involved in this record is a rather complicated one under the facts. Defendant did its mining with an electric machine. The operation of this machine required four men. In front of the machine was a man called the "jack setter," on the machine was a man called "the machine runner," and back of the machine was a man, in mining parlance sometimes called "the spragger," and still back of him was a fourth man called a "shoveler." Both men working back of the machine are sometimes designated "shovelers." This machine operates or runs upon a single rail track, and these rails and thereby the machine, are held in position by jacks, which jacks serve the further incidental purpose of bracing the roof of the mine. The working track consists of four rails and four of these jacks. Each rail is about 7 feet in length. When the ponderous machine (weight about 2,900 pounds) reaches the second jack from the end of the track toward which the machine is moving, the fourth man above described takes down the jack at the rear end of the track, and passes this rail and jack to the "jack setter" at the front end of the track, to be there used for a further extension of the track in the direction in which the machine is moving. The plaintiff in this case was the fourth or rear man. The evidence...