Hurst v. Nineteen Hundred Nine Mining Company
| Decision Date | 04 December 1911 |
| Citation | 141 S.W. 470,160 Mo.App. 53 |
| Parties | A. H. HURST, Respondent, v. NINETEEN HUNDRED NINE MINING COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
Spencer Grayston & Spencer for appellant.
(1) To make a case of negligence, the evidence must show that the defect existed prior to the happening of the accident and that defendant either knew of its existence, or could have known of its existence by the exercise of ordinary care and for a sufficient time before the happening of the accident to enable it to remedy same. Abbott v. Mining Co., 112 Mo.App. 550; Wojtylak v. Coal Co., 188 Mo. 260; Rowden v. Daniel, 132 S.W. 23. (2) The customary manner of doing things is the conclusive test of the exercise of ordinary care. Mason v. Mining Co., 82 Mo.App. 367.
Thompson & Thompson for respondent.
(1) Where the evidence tends to show that the defect that produced the injury complained of, existed and that a proper examination would have revealed such defect, then it is a question for the jury to determine whether or not the master could have known of such defect, by exercise of ordinary care, in time to have averted the injury. Hollweg v Telephone Co., 195 Mo. 145; Fisher v. Lead & Zinc Co., 156 Mo. 479. (2) The trial court in passing upon a demurrer to the evidence should place the most favorable construction possible on plaintiff's theory of the evidence, allowing every inference that could be reasonably deducted from the evidence in his behalf. [Deitring v Transit Co., 109 Mo.App. 524; Phelan v. Paving Co., 115 Mo.App. 423; Luehrmann v. Gas Light Co., 127 Mo.App. 217; Root v. Railroad, 195 Mo. 368. (3) The master is bound to exercise ordinary care to provide his servants with a reasonably safe place to work. Smith v. Coal Co., 75 Mo.App. 177; Knight v. Sadtler, 91 Mo.App. 578; Carter v. Baldwin, 107 Mo.App. 217; Hammon v. Coal Co., 156 Mo. 234; Hollweg v. Tel. Co., 195 Mo. 145. (4) The servant has a right to rely upon the presumption that the master has made the place reasonably safe, in the absence of knowledge that it is not safe. Doyle v. Trust Co., 140 Mo. 1; Koerner v. Car Co., 209 Mo. 141; Himrod Coal Co. v. Clark, 99 Ill.App. 332, 197 Ill. 514. (5) It is the duty of the foreman, if the work is hazardous, to take every reasonable precaution to insure the safety of the employees. Bokamp v. Railroad, 123 Mo.App. 270; Seals v. Whitney, 130 Mo.App. 419.
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 favorably 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 reasonable minds might differ as to the effect of the evidence, the question is one for the jury. [Eckhard v. Transit Co., 190 Mo. 593, 611, 89 S.W. 602; Powers v. Transit Co., 202 Mo. 267, 280, 100 S.W. 655; Williamson v. Transit Co., 202 Mo. 345, 376, 100 S.W. 1072.]
Keeping these rules of law in mind and looking to the testimony we find the following state of facts: This mine had several drifts. These were 12 to 14 feet wide and 12 to 14 feet high. The composition in which the mineral was found was not hard but the mining was done by boring holes therein with a drill machine and blasting. The roof of the drift was of a soap-stone and mendic formation and liable to loosen at any time, then take weight, as the witnesses describe it, and finally fall of its own weight. When a drift had been run back for 12 or 14 feet timbers were then placed in it to brace the roof and prevent caving. Until the timbering was done and the drift made secure against the possibility of caving it was the custom to inspect and trim the roof at...
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