Jarrell v. Blackbird Block Coal Co.
| Decision Date | 03 April 1911 |
| Citation | 136 S.W. 754,154 Mo.App. 552 |
| Parties | DANIEL F. JARRELL, Respondent, v. BLACKBIRD BLOCK COAL COMPANY et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Putnam Circuit Court.--Hon. G. W. Wanamaker, Judge.
Judgment affirmed.
J. S McKinley and C. C. Fogle for appellants.
(1) The master is not an insurer of the safety of the servant. The plaintiff was an experienced miner, knew what to do and how to do it in cleaning out and repairing the defendants' shaft. He knew all the dangers incident thereto, as to the sides caving in. He examined it before he went to work received larger wages for undertaking the job. He knew as well as the master, the defendant, that the sides might cave in. He prepared for it by putting a belt around himself. So in this case he cannot recover, because it is a well settled rule of law in this state that if the defects in the appliances or places of work, were patent to the servant, equally as well as to the master, that is, such as the servant would discover if ordinarily observant, he becomes chargeable with the knowledge of their defective condition, and if injured thereby, cannot recover of the master. Watson v. Coal Co., 52 Mo.App. 366; Flynn v. Bridge Co., 42 Mo.App. 529; Fulger v. Bothe, 117 Mo. 475; Aldridge v. Furnace Co., 78 Mo. 559; Keegan v. Kavanah, 62 Mo. 230; Hulett v. Railroad, 67 Mo. 239; Burns v. Railroad, 129 Mo. 41; Devling v. Railroad, 87 Mo. 545; Pohlman v. Foundry Co., 123 Mo.App. 219; Marshall v. Haypress Co., 69 Mo.App. 256; Blundell v. Manufacturing Co., 189 Mo. 552; Slagel v. Lumber Co., 138 Mo.App. 432; Welch v. Dietzer & Wenzel, 136 Mo.App. 260. (2) The master is entitled to conduct his business in his own way and with such appliances as he sees fit, subject to the qualification that the appliance shall be reasonably safe, considering the character of the work to be done, but need not be the latest or best appliances for doing such work. Blundell v. Mfg. Co., 189 Mo. 558; Bradley v. Railroad, 138 Mo. 293. (3) It is also equally well settled that a master can conduct his business in his own way, and the servant, knowing the hazards of his employment, impliedly waives the right to compensation for injuries incidentally resulting therefrom, although a different method of conducting the work would have been less dangerous. Bradley v. Railroad, 138 Mo. 293. (4) The master is liable to his servant only in case of negligence, that is to say, for failure to discharge some duty that he owes the servant from which failure the servant is injured. A servant assumes the ordinary and usual risks incident to mining or excavating, the existence of which are, or ought to be, known to him. Boemer v. Central Land Co., 69 Mo.App. 601. (5) The evidence does not show that Prichard was the foreman of these defendants, nor does it show that he was foreman of the defendant that undertook to clean out the shaft. Hence defendant's demurrer should have been sustained.
Campbell & Ellison, Higbee & Mills and N. A. Franklin for respondent.
(1) The theory upon which appellants tried the case is found in their instructions No. 3 and No. 6, that is, that the defendants had a right to conduct their business in their own way, and in accordance with their own plans and methods, "unless you further believe from the evidence that the wall at the point where the slide occurred was in a dangerous condition, and that such dangerous condition was known to the defendants, or could have been known to them by ordinary and reasonable care and diligence on their part." According to the testimony of defendants' witnesses, the earth was thoroughly water soaked. On one side of the hole there was an almost perpendicular wall of water soaked clay and sand, with a slant of only two feet. Common experience will teach any man that such a perpendicular wall of water soaked clay and sand in northeast Missouri must cave in and that within a very short time, and that ordinary care and diligence would have suggested that such a danger should have been guarded against. Appellant's statement admits that this condition existed at the time plaintiff was directed by defendant's foreman, Pritchard, to go down into the shaft at noon on May 16. He assured plaintiff that everything was all right. It was reasonable for plaintiff to understand that it was safe for him to go to work. Defendants could not cast upon plaintiff the hazard of the earth caving in upon him when by reasonable care they could have guarded against such danger. Smith v. Kansas City, 125 Mo.App. 150. (2) Defendants state one ground on which they rely for a reversal of the judgment herein, viz: The court erred in not sustaining a demurrer to the evidence. To this objection we will address ourselves. Counsel say, first, that plaintiff assumed the risk, and, secondly, that there was contributory negligence on the part of the plaintiff which precludes his recovery. Before a demurrer to the evidence will be sustained it must be shown that the plaintiff was not entitled to have his case weighed by the triers of fact when considered in the most favorable light. Jordan v. Transit Co., 202 Mo. 418; Von Trebra v. Laclede Gaslight Co., 209 Mo. 648; Hall v. Compton, 130 Mo.App. 675. The plaintiff did not as a matter of law, assume the risk of injury. He was working under the direct supervision of defendant's foreman and had a right to assume that the foreman had looked well to plaintiff's safety. Smith v. Kansas City, 125 Mo.App. 150; Herdler v. Buck's Stove & Range Co., 136 Mo. 3.
Action by a servant to recover damages for personal injuries alleged to have been caused by negligence of his master in failing to exercise reasonable care to provide him a reasonably safe place in which to work. The answer contains a general traverse and pleas of contributory negligence and assumed risk. The cause is here on the appeal of defendants from a judgment of Five Thousand Dollars recovered by plaintiff in the circuit court.
Defendants, engaged in operating a coal mine in Adair county, employed plaintiff, an experienced miner, to work with a gang engaged in opening an air shaft which had been clogged at the top by earth and debris from an extensive cave-in. The shaft was about eighty feet deep and some earth had fallen to the bottom but dislodged and broken timbers had caught in the shaft at a point some twenty or twenty-five feet below the surface and, together with a large volume of caved-in earth formed an obstruction that effectually choked the shaft. This prevented ventilation of the mine and work was stopped therein until ventilation could be restored. The diameter of the cave-in at the surface was about eighteen feet and the sides converged downward with the shaft as the spout of the funnel.
The method adopted by the foreman for clearing away the obstruction was as follows: A platform was built across the hole and a hoisting apparatus operated by horse power was placed on the platform. Men were sent down to take out the earth and debris and send it up in a tub which was lowered and raised by the hoist. This work was in progress when plaintiff was hired. The work was dangerous; plaintiff knew of its dangerous character and he and his fellow-workmen were paid higher wages than they would have received for working in the mine. There were two principal sources of danger in the work, viz., the obstructing timbers were likely to give way at any time, and, together with their load fall to the bottom of the shaft and, on account of the wet condition of the earth, landslides were likely to occur from the sloping sides of the hole and injure the laborers. To guard against the first danger, each miner was equipped with a life-line consisting of a rope attached at one end to a belt around his waist and at the other end to a post at the top. No safeguard was provided for injury against landslides. The foreman and laborers looked for and the latter removed loose earth from the sides but several small and harmless slides occurred during the work. Finally, while the men were still at work a landslide of earth weighing a ton or more occurred near the place where plaintiff was working. The foreman, who was at the top, seized the lifeline and attempted to pull plaintiff away from danger, but plaintiff was caught and severely injured by the falling earth. The work in question was conducted under the immediate supervision and control of the foreman. Defendants contend that the method employed was reasonably safe, while plaintiff contends that it was not and that defendants negligently failed in the performance of their duty to exercise reasonable care to furnish their servants a reasonably safe place in which to work.
Witnesses for plaintiff say that the usual and only safe way of doing such work required that false cribbing be put in from the beginning of the work. On cross examination, the foreman was forced to admit that false cribbing would have protected the men from landslides and that the reason it was not put in was the lack of sufficient material. We quote from his testimony:
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