Hall v. Manufacturers' Coal & Coke Co., No. 16367.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWilliams
Citation168 S.W. 927,260 Mo. 351
PartiesHALL v. MANUFACTURERS' COAL & COKE CO.
Docket NumberNo. 16367.
Decision Date02 July 1914
168 S.W. 927
260 Mo. 351
HALL
v.
MANUFACTURERS' COAL & COKE CO.
No. 16367.
Supreme Court of Missouri.
July 2, 1914.

1. APPEAL AND ERROR (§ 997) — REVIEW — QUESTIONS OF FACT.

In determining whether a demurrer to the evidence should have been sustained or overruled, defendant's evidence tending to show an absence of right to recover cannot be considered, and the demurrer must be tested by the strength of plaintiff's evidence aided by any of defendant's evidence that may help to make out plaintiff's case; plaintiff's evidence and every reasonable inference arising therefrom being taken as true.

2. MASTER AND SERVANT (§ 286) — ACTIONS FOR INJURIES — QUESTIONS FOR JURY.

In a miner's action for injuries caused by rock falling upon him, where there was evidence that he asked the foreman if he thought any more of the roof would fall, that the foreman took a pick, and, after testing the part of the roof which subsequently fell, assured plaintiff that it was sound and safe, that plaintiff was somewhat inexperienced and not familiar with the character of rock in the roof, and, relying on the foreman's assurance of safety, continued to work there until injured, and that if a proper inspection had been made when the foreman made his inspection it could have been discovered that the rock was loose and liable to fall, it was a question for the jury whether the employer was negligent, though plaintiff's evidence tended to show that ordinarily it was his own duty to look after the safety of the roof of his own room.

3. MASTER AND SERVANT (§ 124) — LIABILITY FOR INJURIES — NEGLIGENCE IN MAKING INSPECTION.

Though ordinarily it was a miner's duty to look after the safety of the roof of the room in which he worked and the employer was only required to furnish props necessary for propping the roof, where its foreman undertook to make an inspection as to the safety or soundness of the roof, it was the employer's duty to exercise ordinary care to ascertain the true condition of the roof and inform the miner of the facts that an ordinarily careful inspection would have revealed.

4. MASTER AND SERVANT (§ 289) — LIABILITY FOR INJURIES — CONTRIBUTORY NEGLIGENCE.

Where the danger of the roof of a mine falling was not so obvious and glaring that a reasonably prudent man would not have continued

[168 S.W. 928]

to work there, a miner was not negligent as a matter of law in continuing work in reliance upon his foreman's assurance that the roof was safe.

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

An instruction that if plaintiff was employed by defendant in its mine and under the control and direction of its foreman, who had authority to direct the work and the manner in which plaintiff was engaged at the time of the injury, and if it was plaintiff's duty to obey his orders and directions, and if while so engaged the foreman negligently directed plaintiff to clean up the rock and other débris in a room, and prior to such command had assured plaintiff when inquired of whether it was safe to work there on account of overhanging rocks, that it was safe, and if plaintiff, relying upon such assurance, went to work there and was injured by a slab of rock falling upon him, he was entitled to recover, was erroneous, where negligence on the part of the foreman in giving such assurance as to the safety of the roof was relied upon as a ground of recovery and not merely as relieving plaintiff from the effect of contributory negligence or assumption of risk, since it undertook to cover the whole case so far as defendant's actionable negligence was concerned, and did not require a finding that the assurance as to the safety of the roof was negligently given, but made the employer an insurer as to the correctness of the information furnished plaintiff.

6. TRIAL (§ 296) — INSTRUCTIONS — CURE BY OTHER INSTRUCTIONS.

The error in such instruction was not cured by a further instruction that if the rock which fell upon plaintiff was in a loose and dangerous condition, and if the foreman inspected and sounded it and found it to be in a loose and dangerous condition and liable to fall, or if by the exercise of ordinary care he could have discovered such condition, and if he assured plaintiff that it would not fall and ordered him to work beneath such rock, then such order was negligently made and such assurance negligently given within the meaning of the instructions, since it merely defined "negligent assurance," a term not used in the instruction authorizing a recovery, and, moreover, it was an attempt to supply facts which should have been required to be found by the main instruction and the incorporation of which in a separate instruction would merely confuse the jury.

7. MASTER AND SERVANT (§ 293) — ACTIONS FOR INJURIES — INSTRUCTIONS.

In a miner's action for injuries caused by rock falling upon him, an instruction that though he knew, or by the exercise of ordinary care could have known, that the place where he was working was not safe, this did not defeat a recovery if he was negligently ordered into such place by the foreman and assured that the rock would not fall, and if the danger from such rock was not of such a glaring and dangerous nature as to threaten immediate injury in case he obeyed the order, was erroneous, as it did not require a finding that plaintiff relied upon such assurance of safety.

8. TRIAL (§ 236) — INSTRUCTIONS — CREDIBILITY OF WITNESSES — WEIGHT OF TESTIMONY.

It was proper to charge that the jury were the sole judges of the weight and credibility of the witnesses, but that, if they found and believed that any witness had willfully sworn falsely to any material facts, they might disregard the whole or any part of his testimony.

9. TRIAL (§ 192) — INSTRUCTIONS — ASSUMPTION OF FACTS NOT DISPUTED.

In an action for personal injuries, though an instruction that in determining the measure of damages the jury might consider the mental and physical pain and suffering endured by plaintiff in consequence of the injury, the character and extent of the injury, if permanent, together with his loss of time and service, and find for him in such sum as would be reasonable compensation for the injury, assumed that he sustained injury and suffered pain and loss of time, this was unimportant where these facts were not disputed.

10. DAMAGES (§ 158) — PLEADING — EVIDENCE ADMISSIBLE UNDER PLEADING.

In an action for personal injuries under a petition alleging that plaintiff's body was severely and permanently wounded, bruised, etc.; that the bones, flesh, and ligaments of his hips, pelvis, legs, and ankle were broken, bruised, etc.; that he suffered great bodily and mental pain and anguish as a result thereof; that he was disabled and prevented from attending to his business affairs, or doing anything towards gaining a livelihood; and that he was permanently injured and crippled for life and had suffered and would continue to suffer great bodily pain, annoyance, inconvenience, and expense — evidence was not admissible that the injuries resulted in impotency, as the petition neither alleged such injury nor contained an allegation of a general nature embracing it within its terms, and, where conditions or diseases will not necessarily result from the injuries, they must be pleaded.

Lamm, C. J., and Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by Colby Hall against the Manufacturers' Coal & Coke Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover damages for personal injuries received by plaintiff while working in defendant's coal mine near Novinger, Mo. Suit was instituted in Adair county and on change of venue was sent to Knox county, where trial was had resulting in a verdict and judgment in favor of plaintiff in the sum of $23,666. That portion of plaintiff's petition charging negligence is as follows:

"The defendant negligently, carelessly, and recklessly set him to work in one of the rooms in said mine No. 50, known as room No. 4 off the Tenth West Entry off the Main South Entry, at a place in said room where the rock, earth, and other materials forming the roof of said room was in a loose and dangerous condition and liable to fall at any time; and did negligently, carelessly and recklessly fail and neglect to warn or notify the said plaintiff that

[168 S.W. 929]

the roof of said room, at the point and place where plaintiff was compelled to be in order to perform the work as directed, was in a loose and dangerous condition as aforesaid; but said defendant, its agents, employés, and mine foreman, did carelessly, negligently, and recklessly assure this plaintiff that the roof of said room at the place aforesaid was in a safe and secure condition, and this plaintiff, believing said foreman possessed superior knowledge of said roof, relied upon said statement and assurance and set about the work as directed; and this defendant had negligently, carelessly, and recklessly failed and neglected to furnish and provide a safe, competent, and proper man in charge of said room, and did negligently, carelessly, and recklessly fail and neglect to furnish and provide safe, competent, and proper men in charge of said mine as mine foreman, and did negligently, carelessly, and recklessly fail and neglect to furnish the said plaintiff with a reasonably safe, sufficient, and proper place in which to perform his duties, and did negligently, carelessly, and recklessly fail and neglect to warn or notify the said plaintiff of the dangers of working in said room, this plaintiff being then and there an inexperienced miner, and ignorant by reason thereof of the dangers lurking in said roof of said mine, which said facts the defendant well knew or by the exercise of ordinary care could have known."

The petition further alleges that by reason of the negligence and carelessness of the defendant, as...

To continue reading

Request your trial
138 practice notes
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...omitted facts under respondent's theory which she deemed essential by alleging them very specifically in her petition. Hall v. Coal Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. Charles P. Noell and Hensley, Allen & Marsalek for res......
  • Maurizi v. West. Coal & Mining Co., No. 26372.
    • United States
    • United States State Supreme Court of Missouri
    • November 24, 1928
    ...negligence, after plaintiff had attempted to abandon the case made by the petition and admit that the defenses obtained. Hall v. Coal Co., 260 Mo. 351; Goode v. Coal Co., 179 Mo. 250. (12) The inflammatory and prejudicial argument of counsel to the jury constituted reversible error. Wojtyla......
  • Propst v. Capital Mut. Assn., No. 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...14; Hergold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Hall v. Coal & Coke, 260 Mo. 351, 168 S.W. 927; Dameron v. Hamilton, 264 Mo. 103, 174 S.W. 425; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956; Dunsmore v. Hartmann (Mo......
  • Connole v. E. St. L. & Sub. Ry. Co., No. 33538.
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1937
    ...affirmative fact essential to such verdict, the omission may not be cured by other instructions [Hall v. Manufacturers' C. & C. Co., 260 Mo. 351, 369, 168 S.W. 932 (given on behalf of such party); State ex rel. v. Ellison, 272 Mo. 571, 583, 199 S.W. 984, 988; Schubert v. American Press, 323......
  • Request a trial to view additional results
138 cases
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...omitted facts under respondent's theory which she deemed essential by alleging them very specifically in her petition. Hall v. Coal Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. Charles P. Noell and Hensley, Allen & Marsalek for res......
  • Maurizi v. West. Coal & Mining Co., No. 26372.
    • United States
    • United States State Supreme Court of Missouri
    • November 24, 1928
    ...negligence, after plaintiff had attempted to abandon the case made by the petition and admit that the defenses obtained. Hall v. Coal Co., 260 Mo. 351; Goode v. Coal Co., 179 Mo. 250. (12) The inflammatory and prejudicial argument of counsel to the jury constituted reversible error. Wojtyla......
  • Propst v. Capital Mut. Assn., No. 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...14; Hergold v. United Rys. Co., 308 Mo. 142, 271 S.W. 773; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Hall v. Coal & Coke, 260 Mo. 351, 168 S.W. 927; Dameron v. Hamilton, 264 Mo. 103, 174 S.W. 425; Lackey v. United Rys. Co., 288 Mo. 120, 231 S.W. 956; Dunsmore v. Hartmann (Mo......
  • Connole v. E. St. L. & Sub. Ry. Co., No. 33538.
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1937
    ...affirmative fact essential to such verdict, the omission may not be cured by other instructions [Hall v. Manufacturers' C. & C. Co., 260 Mo. 351, 369, 168 S.W. 932 (given on behalf of such party); State ex rel. v. Ellison, 272 Mo. 571, 583, 199 S.W. 984, 988; Schubert v. American Press, 323......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT