Hall v. Kansas City Midland Coal & Mining Co.

• Decision Date: 02 April 1923
• Docket Number: No. 14445.,14445.
• Parties: HALL v. KANSAS CITY MIDLAND COAL & MINING CO.
• Court: Missouri Court of Appeals

249 S.W. 444

HALL v. KANSAS CITY MIDLAND COAL & MINING CO.

No. 14445.

Kansas City Court of Appeals. Missouri.

April 2, 1923.

Appeal from Circuit Court, Adair County; L. A. Cooley, Judge.

"Not to be officially published?'

Action by Lester Hall against the Kansas City Midland Coal & Mining Company, From a judgment refusing to take off an involuntary nonsuit, plaintiff appeals. Affirmed.

W. F. Frank and J. E. Rieger, both of Kirksville, for appellant.

Campbell & Ellison, of Kirksville, for respondent.

BLAND, J.

This is an action for damages for personal injuries. At the close of plaintiff's evidence the court indicated that he would sustain a demurrer to the evidence, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. Thereafter a motion to set aside the involuntary nonsuit was filed, which the court overruled. Plaintiff has appealed.

The facts show that plaintiff was employed by the defendant as a driver to haul coal in coal cars in defendant's mine from the place where it was mined to the shaft. He was pulling a car by the aid of a mule from the room neck to the main entry when the car became derailed. It was his duty to replace the car upon the track, which he was doing at the time he was injured. The place where the car became derailed was at a curve in the track. The track was composed of steel rails laid upon wooden ties. The rails were about 3 feet apart. The coal cars were about 4½ feet long, having four wheels, two on each side. The distance between the front and rear wheels was about 4 inches. The car stood about 2½ feet above the rails. At the time it was derailed the car was loaded with about a ton of coal, the car itself weighing 400 or 500 pounds. There was a joint in the inner rail at the place where the curve was the greatest. On account of a rotten tie at this place, the spikes did not hold the rails together, so that the end of one of the rails where they were joined together spread out somewhat, forming a lip or jog on the side of the track at the joint.

When the loaded coal car came to the defective joint, the flange of the front wheel struck the lip, causing the two front wheels to jump the track. Plaintiff then unhooked the mule, procured a mine prop, and inserted one end of it under the side of the car in front of the bumper and lifted the front end of the car, intending to place the front wheels upon the track. There was somewhat of a grade forward in the track at the place the car jumped the track, and when plaintiff raised the front end of the car it moved forward, and one of the rear wheels struck the lip, causing them to likewise jump the track. Plaintiff testified that when the rear wheels jumped the track the shock or jerk "throwed me right over on my side and back." It was the custom or...