Henry v. The Disbrow Mining Company

• Decision Date: 02 May 1910
• Parties: EUGENE B. HENRY, Respondent, v. THE DISBROW MINING COMPANY, Appellant
• Court: Missouri Court of Appeals

128 S.W. 841

144 Mo.App. 350

EUGENE B. HENRY, Respondent, v. THE DISBROW MINING COMPANY, Appellant

Court of Appeals of Missouri, Springfield

May 2, 1910

Appeal from Jasper Circuit Court.--Hon. Henry L. Bright, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

H. W Currey and Geo. V. Farris for appellant; John W. Halliburton of counsel.

(1) Under the facts, the plaintiff was either a trespasser or a licensee without invitation. If he was even a licensee without invitation plaintiff owed him no affirmative duty but only the obligation not to recklessly or purposely injure him. Shaw v. Goldman, 116 Mo.App. 340; Lowenstein v. Railroad, 134 Mo.App. 30; Yarnall v. Railroad, 75 Mo. 573; Berry v. Cemetery Assn., 106 Mo.App. 358; Glassner v. Rothchild, 106 Mo.App. 418; Smith v. Packing Co., 87 Mo.App. 9; Eisenberg v. Railroad, 33 Mo.App. 85; Smith v Day, 86 F. 63, 100 F. 244, 116 F. 957; Brehmer v. Lyman, 42 A. 613; Flanagan v. Asphalt Co., 56 N.Y.S. 418; Lake Erie, etc., Co. v. Mauls, 51 N.E. 735. (2) The danger, if any, incident to the doing of defendant's work was open and obvious to the plaintiff, and, being a mere licensee, the defendant owed him no duty except the duty not to recklessly or intentionally injure him, and he assumed whatever risk there was incident to his going upon defendant's premises, and the defendant's instruction No. 11 should have been given. Christner v. Tel. Co., 194 Mo. 209; Browning v. Railroad, 118 Mo.App. 449; McLean v. Burnham, 8 A. 25; Cunningham v. Journal Co., 95 Mo.App. 47. (3) Instruction No. 1, given for plaintiff, is erroneous in that it enlarged the charge of negligence in the petition and permitted a recovery on account of negligence not charged in the petition. Brisco v. Railroad, 118 Mo.App. 668; Allen v. Transit Co., 183 Mo. 411; Schoeder v. Transit Co., 111 Mo.App. 67; Sommers v. Transit Co., 108 Mo.App. 319; Duerst v. Stamping Co., 163 Mo. 607.

R. A. Mooneyham, Lee Shepherd and Herb Crane for respondent.

"An owner and occupier of land and premises is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted or permitted by him, for an injury caused by the unsafe condition of the premises or land, or of the access to the land which is known to him and not to them, and which he has negligently suffered to exist and has given them no notice of." O'Donnell v. Patton, 117 Mo. 19; Thompson on Negligence secs. 968, 976, 985; Welch v. McAllister, 15 Mo.App. 492; Hartman v. Muehlebach, 64 Mo.App. 578; Keen v. Schoening, 103 Mo.App. 77; Miller v. Peck D. G. Co. 104 Mo.App. 614; Sykes v. Railway, 88 Mo.App. 193; Lowenstein v. Railroad, 134 Mo.App. 30; Garden v. Light Co., 23 C. C. A. 649; Bryant v. Barnett, 26 L.R.A. 574; Young v. Oil Co., 185 Mo. 634; 29 Cyc. 451; Dawson v. Co., 70 S.W. 450; Sack v. Car Co., 112 Mo.App. 476; Beck v. Carter, 68 N.Y. 283; Witte v. Stiffle, 126 Mo. 304.

OPINION

GRAY, J.

Plaintiff recovered judgment in the trial court for seven thousand dollars damages for personal injuries alleged to have been caused by the negligence and carelessness of the defendant, from which judgment defendant appealed.

The defendant, in January, 1909, and for some time prior thereto, was engaged in operating a lead and zinc mine in Jasper county, under a mining lease covering twenty mining lots, each two hundred feet square. There were running across the defendant's land several spurs of the Frisco Railway track and these were used in loading ore and gravel from the mine of the defendant and other mines in that vicinity. On Sunday, January 3, 1909, the defendant was engaged in cleaning out a sludge pond used in connection with its mining plant. This pond was cleaned by means of a mudboat which was operated by means of a wire cable, one end of which was attached to the boat, and the other end attached to a hoister which was situated in the mill building of the defendant, and some twenty-five or thirty feet above the surface of the ground. This cable ran in a straight line from the hoister to the ground, at a point about two hundred feet south of the hoister, where it passed around and through a wooden pulley, which for convenience will be named "Pulley A." From this pulley the course of the cable was changed to a westerly course, so as to make a right angle, and about twenty or thirty feet from "Pulley A" the cable passed through another pulley, which will be designated as "Pulley B," and from Pulley B the cable passed in a northwesterly direction to the mudboat, forming another slight angle.

The evidence on the part of plaintiff shows that "Pulley A" was attached to a rail of one of the spurs of the railroad track by means of a chain. One end of the chain was attached to the pulley, then passed around the rail and was hooked in the pulley or in the chain. This pulley was not fastened so as to be stationary, but was fastened in such a manner that when the cable was tightened in pulling the mudboat, it raised "Pulley A" up from the ground to the extent of the slack in the chain, and when the cable was slackened, the pulley fell back to the ground, and it was claimed that when the hoister was started to pull the mudboat, this caused a sudden jerk against the chain and hook holding "Pulley A" instead of a gradual and steady pull, had the pulley been stationary, and on account of the pulley being left loose in the manner above indicated, the weight required to pull the mudboat came against the chain and hook with a sudden jerk, and on account thereof the same was more liable to break than if fastened stationary.

The evidence shows that "Pulley B" was fastened in a stationary manner, and that it would have been an easy matter to have fixed "Pulley A" in the same way. It was further shown that when the mudboat was being moved, nearly all of the pull or weight was on "Pulley A" and that the weight of the mudboat, when filled, was at least one thousand pounds. It was also shown that the hook and chain would pull, with safety, more than one thousand pounds. The spurs of the railroad track ran in a northeasterly direction, so that the cable extending south from the hoister, crossed one of the tracks, and was fastened to a rail on the second track, and then extended west to "Pulley B" attached to the west rail of the first track. The result of "Pulley A" giving way when the mudboat was being pulled, would be to cause the cable to be jerked with great force, so as to make a direct line from "Pulley B" to the hoister.

The testimony shows that in the vicinity of defendant's mine, were other mines employing a large number of men, and that for several years previous to January, 1909, the employees of the defendant's mine and other mines, had used the west track as a pathway in going to and coming from their work in the mines. This was not the only route used by the men, but was one of the regular routes, and used to such an extent that the defendant must have had notice thereof.

At the mine of the defendant two shifts were being worked each day, and known as the night shift and the day shift. The plaintiff had been engaged in working on the night shift, and had worked Friday night previous to January 3, which was on Sunday. He did not work Saturday night, because it was not the custom of the company to work Saturday night. He had heard that it was the intention of the company to change his shift, and according to his testimony, he went to the mine on Sunday morning for the purpose of ascertaining whether he should report for duty on the night shift or the day shift.

The plaintiff's version is that after he was through with his business at the plant, he started down the railroad track to the southwest and when he had reached a point where the cable crossed the track, the defendant's servants started the hoister for the purpose of pulling the mudboat, and as they did, the chain or hook holding the east pulley gave way and thereby caused the cable to move to the west quickly and with great force, striking him and breaking his leg, and thereby caused him serious and permanent injuries.

The petition states the alleged negligence of the defendant as follows: "That it was the duty of the defendant to so fasten said cable by means of a pulley and hook and chain which were then and there reasonably safe so as to prevent injuring plaintiff and other persons passing on and along said track as they lawfully had a right to do. That it was the further duty of defendant to warn plaintiff of its intention to start the hoister engine, aforesaid, a sufficient length of time to enable plaintiff to reach a place of safety. But the defendant wholly disregarding its duty in this behalf wholly failed to provide a chain and hook and pulley which were then and there reasonably safe, but negligently and carelessly furnished and used a chain, hook and pulley which were unsafe and dangerous and liable to break and injure plaintiff, and carelessly and negligently constructed and attached the pulley with hook and chain in such a manner as to be unsafe and dangerous."

The answer in addition to a general denial, alleged contributory negligence, and charged that plaintiff with full knowledge of the fact that the defendant had its wire rope stretched across its lots, and with full knowledge that the defendant was using the same to pull a large and heavy mudboat voluntarily and of his own free will, walked over the defendant's rope and stood in the place where the said plaintiff knew that the breaking of said rope would be likely to injure him; and the defendant alleged that the plaintiff had no right to go to such a place, but was on the private property of the defendant for his own convenience, without any...