Hoover v. Western Coal & Mining Co.

• Decision Date: 20 November 1911
• Citation: 142 S.W. 465,160 Mo. App. 326
• Court: Missouri Court of Appeals
• Parties: HOOVER v. WESTERN COAL & MINING CO.

142 S.W. 465

160 Mo. App. 326

HOOVER v. WESTERN COAL & MINING CO.

Kansas City Court of Appeals. Missouri.

November 20, 1911.

Rehearing Denied January 9, 1912.

1. MASTER AND SERVANT (§ 288)—INJURIES TO SERVANT—ACTION—QUESTION FOR JURY —ASSUMPTION OF RISK.

Evidence, in an action for a coal miner's death by slate falling on him, held to make it a jury question whether decedent assumed the risk of injury by reason of his knowledge of the danger.

2. MASTER AND SERVANT (§ 219)— INJURIES TO SERVANT—ASSUMPTION OF RISK—KNOWLEDGE OF DANGER.

If the danger from a defect is not so patent as to deter an ordinarily prudent man from continuing to work, a servant may continue, without relieving his employer of liability for injuries therefrom.

3. MASTER AND SERVANT (§ 220)—INJURIES TO SERVANT—ASSUMPTION OF RISK—ASSURANCE BY MASTER AS TO SAFETY.

In determining whether a servant acted with due prudence in continuing to do work, the employer's assurance that it was not dangerous to do so is to be considered.

4. MASTER AND SERVANT (§ 222)—INJURIES TO SERVANT—ASSUMPTION OF RISK—COMPLIANCE WITH COMMANDS.

The act of a coal mine foreman in charge of an electric machine in continuing work with the machine, after inspecting the roof above and finding indications that it was loose, was in effect a direction to the machine men with him to continue the work, and was an act of superintendence, making the employer liable for injuries to a servant continuing the work, and not merely an error in judgment.

5. TRIAL (§ 296)—INSTRUCTIONS—CHARGE AS A WHOLE.

An instruction, in an action for a coal miner's death by a slate fall, which did not assume to cover the whole case or direct a verdict, was to the effect that knowledge of the defective roof would not prevent a recovery, if decedent believed "that he could do said work at that time and place by the exercise of ordinary care, if you believed from the evidence that he used all the care required by his position." Other instructions directed the jury that, to authorize a recovery, decedent must have been "in the exercise of ordinary care and prudence," properly defining those terms. Held that, while the first-quoted charge, considered by itself, required a lower degree of care by decedent than that imposed by law, when considered as a whole, the charge was not open to that objection.

6. APPEAL AND ERROR (§ 930) — REVIEW — PRESUMPTIONS—VERDICT — UNDERSTANDING INSTRUCTIONS.

The appellate court cannot assume that the jury did not read all of the instructions, or that they placed a strained construction upon any of them.

7. MASTER AND SERVANT (§ 296)—INJURIES TO SERVANT—ACTION—INSTRUCTIONS.

An instruction, in an action for a coal miner's death by slate falling upon him, that decedent had the right to rely upon the judgment of his boss as an assurance of safety was erroneous for not requiring a finding that he did rely on such assurance, where the evidence authorized a finding that he acted entirely upon his own judgment in continuing work, uninfluenced by his foreman's assurance.

8. MASTER AND SERVANT (§ 179)—INJURIES TO SERVANT—FELLOW SERVANTS—STATUTES.

Under direct provisions of Rev. St. 1909, § 5440, the fact that injuries were caused by negligence of a fellow servant will not prevent recovery by employé from his employer for such injuries.

9. APPEAL AND ERROR (§ 1042)—REVIEW— HARMLESS ERROR—STRIKING DEFENSES.

Even if an employer's defense that the injury was caused by a fellow servant's negligence was improperly stricken, the striking of it was harmless, since the same defense could have been made under the general denial.

10. MASTER AND SERVANT (§ 179)—INJURIES TO SERVANT — FELLOW SERVANTS — STATUTORY PROVISIONS—INTERFERENCE BY LABOR UNIONS.

In view of Rev. St. 1909, § 5443, forbidding a contract exempting a master from liability for injuries to his servants, section 5440, rendering certain corporate employers liable for injuries to servants resulting from the negligence of fellow servants, is not limited in its operation by the fact that the employment of the fellow servants is controlled and dictated by labor unions.

11. MASTER AND SERVANT (§ 262)—INJURIES TO SERVANT — ACTION — ANSWER — FELLOW SERVANTS—FOREMAN—INTERFERENCE OF LABOR UNION.

The answer, in an action for a coal miner's death by a fall of slate, claimed to have been caused by the foreman's negligence, alleged that the foreman was a fellow servant of decedent and the other workmen, and that they all belonged to the same miner's union, which organization compelled defendant to employ the foreman against its will, and "that it was compelled by such union to accept the services of the foreman, and that it had no right or authority to discharge a foreman for neglect of duty; such authority being assumed by the union." Held, that the answer did not allege that defendant did not employ the foreman, or allege duress of property or of the person of defendant's managing officer, whereby he was compelled to hire the foreman, so as to show that the foreman was not employed by a valid contract of employment.

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

Action by Harriet Hoover against the Western Coal & Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. T. Railey and Scott & Bowker, for appellant. Charles Lyons and Alexander Graves, for respondent.

JOHNSON, J.

Plaintiff is the widow of Henry Hoover, who was killed in defendant's coal mine while engaged in its service as a miner. Plaintiff, charging that his death was caused by defendant's negligence, brought this action for damages and recovered judgment in the trial court.

It appears that the deceased was engaged with 3 others in mining coal with an electric machine, which was operated by defendant's foreman. The machine was about 2 feet wide and weighed near 2,700 pounds. It is so contrived that it cuts the dirt from under the coal. The dirt is then racked, and the coal propped up and left for those who load it. The foreman operating the machine was Charles Hoover, a son of the deceased. The deceased's duty was to prop the coal after the dirt was taken from under it. He was an experienced miner. On the day of his injury, they had begun work at 8 o'clock and continued for nearly 3 hours, when a heavy piece of slate fell upon him from the roof, from the effect of which he soon died. During the 3 hours the men were at work before his injury, the roof was examined, or tested by each of the 4 men, though the examination made by deceased was some distance from where the roof fell. The examination was made by tapping, and it made a hollow or "drummy" sound, as expressed by the witnesses. This was known to indicate that the roof was loose. The examinations were made in the presence and hearing of deceased. The last one was made by the foreman about 15 minutes before the injury, and it had a "drummy" sound. The foreman said that it "sounded drummy," but he "believed we could make it through all right."

In view of this evidence, defendant insists that the trial court erred in not sustaining a demurrer to plaintiff's case, since, as it contends, there was a clear showing of assumption of risk by the deceased. We have, however, concluded that under the rulings in this state the court took the proper action in refusing the demurrer and submitting the question to the jury. If danger from the defect is not so patent and manifest as to deter an ordinarily prudent man —if it is such that an ordinarily prudent man could reasonably think h...