Hurst v. Nineteen Hundred and Nine Mining Co.

• Decision Date: 04 December 1911
• Citation: 141 S.W. 470,160 Mo. App. 53
• Parties: HURST v. NINETEEN HUNDRED AND NINE MINING CO.
• Court: Missouri Court of Appeals

141 S.W. 470

160 Mo. App. 53

HURST v. NINETEEN HUNDRED AND NINE MINING CO.

Springfield Court of Appeals. Missouri.

December 4, 1911.

1. APPEAL AND ERROR (§ 927) — RULING ON DEMURRER TO TESTIMONY—REVIEW.

The court, in reviewing the overruling of a demurrer to the evidence, must give plaintiff the benefit of the testimony most favorable to him, and allow every reasonable inference in his favor therefrom, and will not weigh the evidence.

2. TRIAL (§ 139)—QUESTION FOR JURY—EVIDENCE.

Where the evidence, when considered most favorably for plaintiff with every reasonable inference in his favor, establishes a case, or when reasonable minds may differ as to the effect of the evidence, the case is for the jury.

3. MASTER AND SERVANT (§ 286) — INJURY TO SERVANT—NEGLIGENCE — QUESTION FOR JURY.

In an action for injuries to an employé in a mine, while assisting in timbering a reach in a drift caused by dirt falling from the roof of the drift, evidence held to require submission to the jury of the issue of the master's negligence in failing to properly inspect and trim the roof.

4. MASTER AND SERVANT (§§ 124, 125)—INJURY TO SERVANT—NEGLIGENCE.

To hold a master liable for injuries to an employé caused by a failure to furnish a reasonably safe place in which to work, the evidence must show that the defect complained of was known to the master, or by the use of ordinary care could have been known, in time to have remedied it before the injury, and the duty to inspect and remedy defects is commensurate with the danger.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by A. H. Hurst against the Nineteen Hundred and Nine Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Spencer, Grayston & Spencer, for appellant. Thompson & Thompson, for respondent.

COX, J.

Action for damages for injury to plaintiff caused by rock and dirt falling from the roof of a mine while plaintiff was at work therein. Judgment for plaintiff for $200, and defendant has appealed.

Defendant is the owner of a mine near Neck City in Jasper county in which plaintiff was employed and at work at the time of the alleged injury. All the men in the mine were under a ground foreman, and he directed and controlled all the work. Plaintiff's usual duties were to run a machine used in drilling holes for blasting, but he was also required to do whatever he was told to do by the ground foreman. On the 12th of March, 1910, plaintiff was directed to assist in timbering a reach in a drift of this mine and while he was thus engaged rock and dirt fell from the roof of the drift, struck and injured him. The ground of negligence upon which plaintiff's action is based is a failure of defendant to perform its duty to him in not furnishing him a reasonably safe place to work. The specific negligence in that regard is alleged to be a failure to inspect and trim the roof of the drift and pull down the loose stuff, rocks, and boulders therefrom.

Appellant's counsel with commendable frankness concedes the well-settled rule of law that it was the duty of defendant to use ordinary care to furnish plaintiff a reasonably safe place in which to work, and that the instructions to the jury in this case fairly submitted the issue as to whether or not that duty was properly performed, but contends that the evidence is insufficient to support the verdict and insists that the demurrer to the testimony should have been sustained, and this is the only question for our determination.

The rule of law by which we are to be guided in determining this question is also well settled. We cannot weigh the testimony, for that duty is placed upon the jury alone; but we must give the plaintiff the benefit of the testimony most favorable to him and allow every reasonable inference in his favor therefrom. Hollweg v. Bell Tel. Co., 195 Mo. 149, 165, 93 S. W. 262; Phelan v. Granite Bituminous Paving Co., 115 Mo. App. 423, 432, 91 S. W. 440.

If, when the testimony is considered in the light of the above rule, it is found that a case is made, or if it appear that...