Hamman v. Central Coal & Coke Co.

• Decision Date: 08 May 1900
• Citation: 156 Mo. 232,56 S.W. 1091
• Court: Missouri Supreme Court
• Parties: HAMMAN v. CENTRAL COAL & COKE CO.

56 S.W. 1091

156 Mo. 232

HAMMAN v.CENTRAL COAL & COKE CO.

Supreme Court of Missouri.

May 8, 1900.

DEATH — MASTER AND SERVANT — MINES AND MINERALS — CONSTITUTIONAL LAW — TRIAL — DEMURRER TO EVIDENCE — ASSUMPTION OF RISK — NEGLIGENCE — QUESTION FOR JURY — REVIEW — OBJECTIONS — QUESTION OF FACT — HARMLESS ERROR.

1. Acts 1891, p. 182, amending Rev. St. 1889, § 7074, by entitling the widow and children of any person killed by the negligence of his employer while engaged at work in a mine to recover any sum not exceeding $10,000, instead of $5,000, as provided by the general damage act, is not unconstitutional, as class legislation prohibited by Const. art. 4, § 53.

2. Rev. St. 1889, § 7074, as amended by Acts 1891, p. 182, providing that, in case of the death of an employé in a mine through the negligence of his employer, a right of action shall accrue to the widow of the person so killed, his lineal heirs or adopted children, etc., gives a separate right of action to the persons in the order named, and hence the widow may maintain an action without joining the children.

3. On a demurrer to plaintiff's evidence, every reasonable intendment to be drawn from the evidence must be indulged in favor of plaintiff.

4. Where the evidence as to whether an employé killed in defendant's mine had been furnished with roof props in time to have used them is conflicting, the question must be left to the jury.

5. Whether an experienced miner, who was killed by the falling of the roof of the mine, had assumed the risk by continuing to work after the mine owner had failed to supply props which he had requested, is for the jury.

6. In an action for damages for the death of an experienced coal miner, killed by the falling roof of a mine, an instruction permitting recovery if the danger was not obvious to a person of ordinary observation, instead of to a person of his experience, is harmless error, where all the witnesses as to the condition of the mine were themselves experienced coal miners.

7. A verdict based on conflicting evidence is conclusive on appeal.

8. In an action for damages for death by wrongful act, evidence as to what deceased earned the year before he was killed is inadmissible; the proper inquiry being what he was earning at the time.

9. Objection that evidence is inadmissible under the allegations of the petition cannot be first raised on appeal.

10. Objection to remarks of counsel in argument to the jury not raised on motion for new trial cannot be considered on appeal.

Sherwood and Marshall, JJ., dissenting.

In banc.Appeal from circuit court, Bates county; W. W. Wood, Special Judge.

Action by Mary Hamman against the Central Coal & Coke Company.Judgment for plaintiff, and defendant appeals.Affirmed.

The following is the opinion in division (BURGESS, J.):

"This is an action by plaintiff, who is the widow of Philip Hamman, deceased, against the defendant company for $10,000 damages for the death of her husband, a coal miner, by the alleged carelessness and negligence of the defendant.The petition was filed on the 4th day of October, 1895, and alleges that plaintiff's husband came to his death in a mine owned and operated by defendant on the 14th day of February, 1895; that her said husband was working in said mine, and was killed by the falling of a large amount of rock from the roof of the room in which he was working; that the deceased had demanded props, with which to prop the roof of the room in which he was engaged at work, some days prior to February 14, 1895, the day of the accident; that defendant willfully, negligently, and carelessly failed to send down into the mine the props so demanded; that said mine was one in which more than ten men or miners were worked; and that by reason of such willful negligence, carelessness, and failure of defendant, the said Philip Hamman was killed, to the plaintiff's damage in the sum of $10,000, for which sum she asks judgment.While the petition alleges that plaintiff was the widow, it contains no allegation with respect to his children.The answer of defendant was, first, a general denial of the allegations in the petition.It then alleged affirmatively that Philip Hamman was guilty of negligence which contributed directly to his death, in failing to use for his own protection props and timbers which had been furnished to him by defendant, and which were in the room at the time; that he was a practical miner, and saw and knew the dangerous condition of the roof under which he worked, and with this knowledge voluntarily continued to work thereunder for a long time prior to and up to the accident, and thereby assumed the risks incident to the same.The answer further alleged that the act of the legislature entitled `An act to amend section 7074, chapter 115, article 2, of the Revised Statutes of the State of Missouri, relating to the safety and inspection of mines'(Laws 1891, p. 182), under which this action was brought, is unconstitutional and void, because class legislation, which is inhibited by section 53, art. 4, of the state constitution.It was also alleged in the answer that, for the same cause of action here sued upon, the plaintiff herein, prior to the June term, 1895, of the Bates circuit court, instituted suit against this defendant, and that a trial thereof was had in said circuit court at the June term thereof, 1895, and a nonsuit taken by plaintiff.The facts, briefly stated, are that plaintiff is the widow of Philip Hamman, deceased, who was at the time of his death, and for a long time prior thereto, by occupation, a coal miner; and while at work as such miner in defendant's coal mine on the 14th day of February, 1895, he was killed by the falling upon him of a large piece of slate, about twelve feet square, from the roof under which he was working at the time.At the time of his death Philip Hamman left surviving him two children by a former marriage, who are not parties to this suit.One of them (David Hamman) testified that he had been mining fourteen years, and was eighteen years of age when he began; and the other (Jake Hamman) testified that he was about 31 years old.More than ten men were employed in the mine at the time of the accident.Plaintiff began suit against defendant on this same cause of action to the June term, 1895, of the Bates circuit court, but she took a nonsuit at the same term.At the time of the accident there were no props supporting the roof to the room in which it occurred, back from the face of the coal for a distance of from twenty-two to twenty-five feet, and it was unpropped from sixteen to eighteen feet one week before the accident, while it should have been propped to within eight to twelve feet of the face, though sometimes, when the roof appeared good in that room, it was not propped nearer than from twenty to twenty-five feet, and in the adjoining room it was worked for thirty feet in advance of the props.The roof where the accident happened was examined by one of the miners with his pick, which was the usual and proper way to examine the roof and test its strength, within one hour prior to the accident, and he found it to be safe to work under.After this, and before the accident, no shots were fired in this room; but the shot firer was in there about nine o'clock the night before Hamman was killed, and testified that, while he hardly had time to examine the roof, he looked at it, and thought it was all right, and looked like it was safe.It was shown by the evidence for plaintiff that props for this room were demanded on Friday or Saturday, and again on the following Thursday and Monday, and again on the morning of the day of the accident, which occurred late in the evening.On the other hand, defendant's pit boss testified that the only demand made was on Friday or Saturday before the accident, when deceased called for one car of props, and he sent him two cars, of eight props each.Plaintiff's evidence also tended to show that there were some three and three and one half foot props in the crosscut between the rooms, about one hundred and fifty feet under the center, that were worked by the deceased and his son, that had been sent there for use by John Jackson, who worked room before deceased did, but which were not used because they were too short, and could not be safely used.The length of props required in this room was from four to four and one-half feet in length.While the witnesses, as a rule, testified that it was unsafe to leave the roof of a mine like the one in which the accident occurred unpropped from twenty to twenty-five feet, they all agreed that the proper method of examining a roof of a mine in order to tell whether it can be safely worked under it is by sounding it with a miner's pick, and, if the result of the contact of the pick with the roof is a solid or dead sound, it is considered safe to work.The evidence was conflicting as to whether or not there were any unused props in the room of the...