Jackson v. Old Dominion Mining Co.

• Decision Date: 05 December 1910
• Parties: JACKSON v. OLD DOMINION MINING CO.
• Court: Missouri Court of Appeals

132 S.W. 306

151 Mo. App. 640

JACKSON v. OLD DOMINION MINING CO.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. MASTER AND SERVANT (§ 163) — INJURIES TO SERVANT — NEGLIGENCE — SUFFICIENT HELP.

A master is bound to furnish sufficient help to enable a servant to perform the work demanded of him with reasonable safety.

2. NEGLIGENCE (§ 134) — PROOF — REQUISITES.

In all actions founded on negligence, plaintiff must prove with reasonable certainty the act of negligence complained of, and that injury resulted to plaintiff therefrom.

3. MASTER AND SERVANT (§ 278) — DEATH OF SERVANT — NEGLIGENCE — SUFFICIENT EMPLOYÉS.

In an action for death of a servant by his losing his balance and falling from a pier while endeavoring to shove a sill lengthwise, evidence held insufficient to warrant a finding that defendant was negligent in failing to place another man on the next pier to assist deceased in moving the sill.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by Alice Jackson against the Old Dominion Mining Company. Judgment for plaintiff, and defendant appeals. Reversed.

McIndoe & Thurman, for appellant. Thompson & Thompson, for respondent.

COX, J.

Action for damages for the death of plaintiff's husband alleged to have been caused by the negligence of defendant in not furnishing sufficient men to help the deceased in his work. Trial by jury, verdict for plaintiff for $2,000, and defendant has appealed.

The evidence shows the defendant to have been engaged in preparing a foundation on which to build a mining jig. This foundation was prepared by building concrete piers, some six feet long, with a surface ten inches wide at the top and by putting sills across from one pier to another; then a floor was to be laid on top of these sills and the jigs placed thereon. Plaintiff's husband was on top of the east pier for the purpose of putting the sills in place when he fell off and was killed. While no one was able to explain the circumstances under which he fell with any degree of accuracy, yet the evidence indicates that at the time of the accident he was standing on top of the pier and astride of a sill that was 6 inches square and from 12 to 16 feet long over which he was stooping evidently with the intention of pushing the sill endwise. He was seen in that position and the next seen of him he had fallen to the ground and the sill which he was attempting to move had balanced over the next pier west and had also fallen. This is all the evidence shows as to how he came to fall. The evidence further shows that there were at least three men engaged in the work of carrying these sills from where they were located on the ground and putting them in place on the piers. There is some evidence that one man by the name of Christian was especially designated to assist the deceased in placing the sills, but at the time of the accident he was out of the building and plaintiff was on the pier alone. There was evidence that it was usual in placing the sills in position on the piers to have one man at each end, and that if there were one man at each end they could, in moving the sills endwise, balance against each other and thus move the sill with more safety; but just how this would be so is not explained. The deceased was 62 years old, a carpenter by trade, a man of experience, and had worked for several years at similar work to that in which he was engaged at the time of his death.

Numerous errors are assigned, but we shall only give attention to one, and that is, the refusal of the court to sustain a demurrer to the testimony.

The negligence alleged in the petition, and on which the case went to the jury, is the failure of the defendant to furnish a sufficient number of men to perform the work in which plaintiff was engaged. If this allegation was sustained...