Kirby v. Manufacturers' Coal & Coke Co.

• Decision Date: 02 December 1907
• Citation: 106 S.W. 1069,127 Mo. App. 588
• Court: Missouri Court of Appeals
• Parties: KIRBY v. MANUFACTURERS' COAL & COKE CO.

106 S.W. 1069

127 Mo. A. 588

KIRBY v. MANUFACTURERS' COAL & COKE CO.

Kansas City Court of Appeals, Missouri.

December 2, 1907.

Rehearing Denied January 6, 1908.

1. MASTER AND SERVANT — INJURY TO SERVANT — LIABILITY OF MASTER.

The miners' statute of 1899, Rev. St. 1899, c. 133, art. 2, § 8823 [Ann. St. 1906, p. 4098], requires entry ways in mines to be run parallel for ventilation purposes, with cross-cuts not more than 50 feet apart. Section 8826 [Ann. St. 1906, p. 4099] requires, in part, that all shots prepared by the miner for extracting coal from the solid shall be so placed, drilled, and charged that when fired they shall perform safely the work required of such shots. Held that, where two entries were allowed to converge until only 7 or 8 feet apart at a point where by law a new cross-cut must be made, and a shot was driven deep into the dividing wall, so that when fired it broke through into the other entry and killed plaintiff's husband, there was a violation of the statute, which under the express provisions of section 8820 [Ann. St. 1906, p. 4096] gave plaintiff a right of action for damages therefrom.

2. SAME.

Held further, that while section 8826, Rev. St. 1899 [Ann. St. 1906, p. 4099], requires the safe placing of shots to be done by the miner, a fellow servant of deceased, yet the fact that the entries were allowed by the pit boss to converge to such a short distance apart at a spot where a new cross-cut must be made, and that he allowed a shot to be placed at such spot, was negligence on his part, rendering the employer liable.

3. SAME—CONTRIBUTORY NEGLIGENCE.

The miners' statute of 1899, Rev. St. 1899, c. 133, art. 2, § 8826 [Ann. St. 1906, p. 4099], requires the shot firer, if he discovers that a drill hole is gripping too much, or that it is drilled too much into the tight, so that it may, in his judgment, prove dangerous, to pass it without firing, and promptly notify the mine foreman that it has been condemned. Held, that the section only imposes diligence and caution on the shot firer, and does not necessarily make him negligent in failing to discover the danger in a shot fired by him.

4. SAME—QUESTIONS FOR JURY.

In an action against a mine owner for the death of an employé, the question of decedent's contributory negligence held for the jury, under the evidence.

5. SAME—ASSUMPTION OF RISK.

A servant does not assume the risk of his employer's negligence.

6. SAME — GROUNDS OF ACTION.

The miners' statute of 1899, Rev. St. 1899, c. 133, art. 2, § 8823 [Ann. St. 1906, p. 4098]. requires entries in coal mines to be run parallel with cross-cuts not less then 50 feet apart for ventilation purposes. A pit boss allowed two entries to converge till, at a point where a cross-cut must be run, they were only 7 or 8 feet apart, and permitted a shot to be placed in the dividing wall, which blew through into the next entry and killed plaintiff's husband. Held, that an action for his death was not an attempt to recover for a violation of the statute, on account of an injury not intended to be prevented thereby; the action not being based on the violation of the statute, but on the negligent placing of a shot in a wall unsafe therefor, and made unsafe by failure to run the entries parallel as required by law.

7. TRIAL—RECEPTION OF EVIDENCE—DISCRETION OF COURT.

It is not an abuse of the discretion of the trial judge for him to permit plaintiff's counsel to confer privately with one of defendant's witnesses before entering on the cross-examination of such witness.

8. APPEAL—REVIEW—ESTOPPEL TO ALLEGE ERROR.

Objections to evidence elicited by plaintiff as being the conclusions of the witness will not be ground for reversal, where the same line of questioning was pursued by defendant.

Error to Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Kate B. Kirby, against the Manufacturers' Coal & Coke Company. From a judgment for plaintiff, defendant brings error. Affirmed.

Percy Werner, for plaintiff in error. Higbee & Mills, for defendant in error.

ELLISON, J.

The defendant is a coal mining corporation, who had in its employ one Joseph Kirby, who, while engaged in such employment, was killed by the blasting of coal in the mine. The plaintiff is his widow, and brought the present action for damages resulting to her on account of his death. The judgment in the trial court was in her favor.

The defendant contends that the action can only be maintained under the provisions of article 2 of chapter 133 of the miners' statute of 1899 (Rev. St. 1899 [Ann. St. 1906, p. 4082]) and amendments thereto. It furthermore insists that the petition is based on the statute. The trial court so interpreted the petition. We will therefore consider whether a case has been made out under the statute. So far as is necessary to state the case as respects our conclusions, coal was being mined through entries or entry ways, and by drilling holes into the walls of coal and charging them with explosives and attaching fuses. The case shows that defendant's servants drilled and charged these holes, and that other servants (called "shot firers") exploded them. The deceased in this case was one of the latter class of servants. The mine in question was worked on the "room and pillar plan," and, as is provided by section 8823 of the statute (Rev. St. 1899 [Ann. St. 1906, p. 4098]) had two entry ways. These ways are required by this statute to be run parallel "for the egress and ingress of the air," and "cross-cuts must he made at intervals not to exceed 50 feet apart." The entry ways in question were designated as No. 5 and No. 6. The last cross-cut connecting them was 50 feet back of the place where the explosion occurred, and the distance between the two entries at the former point was about 26 feet. Instead of being run parallel, as required by the statute, they were excavated in such way as to approach each other until, at the point of explosion, they were only about 7 feet apart. At this point of explosion, about 50 feet from the last cross-cut, as just stated, one of defendant's servants, with the knowledge and approval of the pit boss, drilled a hole and charged it with explosive and fuse for the purpose of having it fired by the shot firer. This hole was drilled diagonally into the wall of coal for several feet, and ended within less than 2 feet from the wall on the opposite side in entry No. 6. At the proper time the deceased, who was shot firer in that entry, came along and lighted the fuse of that charge, and then, for safety, quickly made his way around into entry No. 6 and down to about opposite the point where he had lighted the fuse. The explosion blew large quantities of coal and other substance with great force out into entry No. 6, and killed the deceased. It was shown that, if the entry ways had been run parallel from the last cross-cut, that is to say, if they had not been cut out in such way as to approach each other, the wall dividing them would have been so thick at the point of explosion that entry No. 6 would not have felt it or been affected by it, and hence the deceased would have been unharmed. It was shown that the pit boss knew the entry ways had approached too close together. He knew that the wall or pillar dividing them was not more than 7 or 8 feet thick, where, according to the testimony of the miner who drilled and charged the hole, the cross-cut was to be made. Aside from the testimony of that miner, the pit boss necessarily knew that a cross-cut would be made there as that was the proper distance from the last one, and he knew that blasting or firing would be done at that point. Some of the foregoing statement is drawn from the evidence offered by defendant; other parts of it from the evidence in behalf of plaintiff which, after the verdict, we accept as the fact. The statute provides (section 8820, Rev. St. 1899 [Ann. St. 1906, p. 4096]) that, "for any injury to persons or property occasioned by any violation of this article or failure to comply with any of its provisions, a right of action shall accrue to the party injured," etc. We have already stated that by the terms of section 8823 the entries should be run parallel, and that a cross-cut connecting them should be cut every 50 feet. It is further provided (section 8826, Rev. St. 1899 [Ann. St. 1906, p. 4099]) that "all shots prepared by the miner for the extraction of coal from off of the solid, must be so placed, drilled and charged, that the same, when fired shall perform safely the duty required of such shots," etc. The question then is, was the statute violated by the defendant? That section 8823 was violated there is no room for question. So we think it equally clear that that part of section 8826 just quoted was violated; for it was shown that the situation and surroundings at the point in question made it manifestly an unsafe place in...