Kube v. Northwestern Coal & Mining Co.

• Decision Date: 06 January 1919
• Docket Number: No. 12548.,12548.
• Citation: 209 S.W. 614
• Court: Missouri Court of Appeals
• Parties: KUBE v. NORTHWESTERN COAL & MINING CO.

209 S.W. 614

KUBE v. NORTHWESTERN COAL & MINING CO.

No. 12548.

Kansas City Court of Appeals. Missouri.

January 6, 1919.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by Joe Kube against the Northwestern Coal & Mining Company. From a judgment for plaintiff, defendant appealed. Reversed.

Guthrie & Franklin, of Macon, for appellant.

Edwards, Davis & Dempsey, of Macon, for respondent.

ELLISON, P. J.

Plaintiff's action was instituted under section 8473, R. S. 1909, to recover damages for personal injury received by him in defendant's coal mine where he was engaged in mining coal for defendant. The negligence charged is that defendant failed, in answer to his request, to furnish him suitable props for the roof of his room in the mine, as is required by the statute. He recovered judgment in the circuit court.

There was evidence tending to show that plaintiff was an elderly man, with a lifetime experience as a coal miner; that on the morning of the 16th of January, 1916, while engaged in setting a prop to further protect the roof of his room, another prop suddenly broke, about a foot from the top, which caused one side of a large rock of immense weight to fall upon or against him, breaking his leg and inflicting other injuries. The evening before he and his companion had each drilled a hole about three inches in diameter several feet into the face of the coal, and had charged each of them with powder to be "shot" by firers some time prior to next morning when they were to return to work. On their return the next morning they found that the shots had been fired and about "one half a car" of the coal had fallen over the track used by a driver in taking out coal which they mined. They also found that some props, as was not unusual, had been knocked wholly, or partially, down. Plaintiff, after removing the coal, to resecure the roof, was engaged in setting a prop, which, being too long, made it necessary that he take out a few inches of dirt. It was while thus engaged that the middle one of three props setting in a row under this rock broke and the rock came upon him. These three props had been selected by plaintiff and his companion five or six days previous from among a lot furnished by defendant. They were stated by plaintiff to be all right when he came to his work the morning he was hurt. Plaintiff's expression was that, "When I came into the room first that morning the place was perfectly all right, only what little coal was scattered in the room, and I cleaned that up."

As has been stated, the prop that broke and let the rock fall on plaintiff was one of three which he placed in a row five or six days before and they had served during this time, surviving all movement or jars caused by successive shots, and plaintiff testified that the other two were sound and good. The testimony by plaintiff in his own behalf, as well as by his companion, showed that defendant had furnished props in abundant number and we think in proper lengths, notwithstanding something was stated in testimony as to some being a few inches too short or too long to fit between floor and roof, for we think that an unreasonable objection. In the nature of the work and the place, props would necessarily need to be lengthened by putting pieces of timber, or board, under them, or between their tops and the roof, or shortened by being cut off, or sunk a few inches, the latter being what plaintiff was engaged in doing when hurt.

Now, when the mine owner furnishes props in quantity, as appears from the entire face of the evidence was done in this case (plaintiff receiving a carload at one time only a few days before the accident), it becomes the duty of the miner to select the proper ones for the different places in which he desires to put them. It is true the proprietor must not carelessly furnish props which he has reason to believe have latent defects which will deceive the miner. But if he furnishes a largely sufficient quantity, and some, for different reasons, are unsuitable in strength, while others are suitable, the miner is charged with the duty of selecting for himself. Plaintiff has shown that defendant furnished abundant props, and he has not shown that largely sufficient numbers were not sound and strong enough. He has merely shown that he made a bad and careless selection, and that, we think, he must charge to his own misfortune.

The case cannot be distinguished from Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934, where the master furnished to his workmen a lot of lumber with which to erect scaffolding. The workmen selected the boards, and among them a defective one, which broke and caused an injury. The master was held not liable, the court saying:

"A servant is presumed to possess, not only common sense, but certain knowledge peculiar to his trade, or art. The master may be presumed to hire, not only the bodily services of the servant (his hands, eyes, ears, muscles, and legs), but the skill and knowledge pertaining to the servant's art or trade and possessed by the latter. Hence it is steadily held as sound law that the master may trust the servant to perform the intermediate, the ordinary and simple duties incident to the servant's employment and resting upon the servant's knowledge and skill. For instance, a carpenter knows a good board as well as his master, and in...