Lawbaugh v. McDonald Mining Co.

• Decision Date: 20 April 1918
• Docket Number: No. 2221.,2221.
• Parties: LAWBAUGH v. McDONALD MINING CO.
• Court: Missouri Court of Appeals

202 S.W. 617

LAWBAUGH v. McDONALD MINING CO.

No. 2221.

Springfield Court of Appeals, Missouri.

April 20, 1918.

Appeal from Circuit Court, Jasper County; Robert A. Pearson, Judge.

Action by C. G. Lawbaugh against the McDonald Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. E. Spencer, of Joplin, for appellant. Owen & Davis, of Joplin, for respondent.

FARRINGTON, J.

The plaintiff recovered judgment for damages for personal injuries against the defendant, who brings its appeal to this court. The facts surrounding the injury are as follows: Defendant operates a mining plant, and for the purpose of conveying electric power down in the ground constructed a conduit or iron pipe reaching from the top to the bottom of the shaft. In this iron pipe three copper wires were carried incased in a lead covering forming a cable, and attached to this cable and supporting 'it was a messenger wire. The conduit pipe and all its contents (including the messenger wire and the three copper wires which were incased in the lead cable) came to the top of the shaft and ran into an iron box, called a terminal box, about 6 by 8 by 12 inches in size, this iron box being screwed or attached to the iron pipe or conduit, and resting on some wooden pieces about 3 feet above the top of the shaft. The lead cable containing the copper wires was attached to the back of the box by means of some wooden 2×4's. These copper wires ran out from this iron box to a point in defendant's mill, and the messenger wire or supporting wire ran on through the top of the iron box, and was fastened to a hook which hung over a wooden timber, the messenger wire first being fastened to a turnbuckle and then to this hook. Defendant's mill burned. The wooden supports gave way, letting the iron box, the iron casing or conduit, and the three copper wires leading from the iron box to the mill sink into the shaft something like 30 or 40 feet. The hook attached to the messenger wire came down and rested on the top of the iron box, and was held there because the hook and turnbuckle could not go through the hole in the top of the iron box. The plaintiff was sent down in the shaft and helped attach fastenings, so that the entire arrangement was drawn back to the top of the shaft; that is, the iron box was pulled back up the shaft and brought with it the casing or conduit, the messenger wire, and the lead cable incasing the three copper wires. This iron box when drawn back to the top of the shaft was securely fastened, and the top of it held the messenger wire, which, as before stated, was attached to the lead cable incasing the three copper wires. The three copper wires which ran from the top of the iron box to the mill on the top of the ground had been burned, so that the lead was off of them, and they had been jerked down in the shaft with the iron box, and when this iron box was brought up by the plaintiff and other workmen, it left hanging down from it into the shaft the ends of the three copper wires some 20 or 30 feet. The plaintiff was put to work by the defendant's foreman in helping to clear up this trouble. De took hold of these three copper wires hanging loosely down in the shaft, and, as he was attempting to lift them up, the hook in the top of the iron box straightened, and let the messenger wire slip through and fall, which carried with it, of course, the three copper wires the plaintiff held in his hand, the result being that his fingers were caught between the top of the iron box and these wires, which were being pulled down by gravity because of the fact that the messenger wire was no longer sustaining the weight of the cable, since the hook had given way. The lead cable, when it reached the inside of the iron box, as before stated, was clamped to the back of the box by wooden clamps, and after the injury it was discovered that these wooden clamps had become charred in the fire to such an extent that they did not sustain or hold the wires which they had previously held in place.

The negligence relied on is that defendant had not taken reasonable care to inspect this iron box and to ascertain that the charred condition of these clamps was such that the weight of the whole apparatus was not securely sustained.

It was shown that the iron box had been lifted out of the shaft, and was up where an inspection could have been made for a reasonable length of time before the injury occurred.

The plaintiff's testimony also shows that he was inexperienced in electrical equipment such as this, and that he had never looked in the iron box, and did not know that the clamps holding the cable had become charred.

Defendant's theory of the case is that the whole weight of these wires which slipped and cut off plaintiff's fingers was sustained by the messenger wire and hook which held it up, and that there was no negligence proven concerning the hook or concerning the slipping or bending of the hook so as to go through the box.

On the other hand, plaintiff's evidence clearly shows that the weight of the lead cable surrounding the copper wires was not only sustained by the messenger wire and hook, but also was kept in place and sustained, at least in part, by the wooden clamps inside the iron box, and plaintiff's theory is that the failure to remedy this charred condition of these clamps was one of the efficient causes of the injury, and we may say without going into detail that plaintiff's evidence does tend to support a finding for him on that theory.

Appellant makes two contentions, that the court erred in giving instruction No. 1 asked by the plaintiff, and in refusing instruction No. 7, asked by it.

Plaintiff's...