Leslie v. Rich Hill Coal Mining Company
| Citation | 19 S.W. 308,110 Mo. 31 |
| Parties | Leslie v. Rich Hill Coal Mining Company, Appellant |
| Decision Date | 09 May 1892 |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Wm. Page, Esq., Special Judge.
Reversed and remanded.
T. J Smith for appellant.
(1) The court erred in overruling appellant's motion to strike from the files the Leslie deposition and afterwards permitting it to be read in evidence over appellant's objection. (2) Instruction, numbered 1, given for respondent was erroneous. First. There is no allegation in the petition to the effect that Alex. Wilson, "by consent and authority of defendant," managed mine number 5, nor is there any evidence that appellant (defendant) furnished "all material * * * and all the other things necessary for the operation of said mine." Second. There is no evidence that "all said appliances and property * * * were the property of said defendant," appellant. Third. There is no evidence that appellant reported to the mining inspector "the accidents and injuries occurring to miners in said mine" other than that to plaintiff. Fourth. There is no substantial evidence that appellant "through its superintendents, exercised a superintending control in the management and operation of said mine." Skyles v. Bollman, 85 Mo. 35; Bank v Overall, 16 Mo.App. 515; Brown v. Ins. Co., 86 Mo. 51. Fifth. The premises laid down in this instruction being true, the legal conclusion drawn does not follow. 2 Thompson on Negligence, 899, sec. 22; Fink v. Furn. Co., 82 Mo. 283; Wood's Master & Servant, secs. 314, 317, pp. 610, 631; Parnell v. Const. Co., 13 S.W. 691. Sixth. It submits an issue not made in the pleadings, that appellant was the operator of the mine. Camp v. Heelan, 43 Mo. 591; Glass v. Gelvin, 80 Mo. 297; Brown v. Railroad, 80 Mo. 457; Storm v. White, 23 Mo.App. 31. (3) Instructions, numbered 2 and 4, given for respondent improperly ignored the element of wilfulness in defendant's failure to furnish props. Acts, 1881, p. 170, sec. 14; Bank v. Murdock, 62 Mo. 70; State v. Palmer, 88 Mo. 572; Bank v. Westlake, 21 Mo.App. 565. (4) The petition states no cause of action against defendant. Walker v. Martin, 8 Mo.App. 561.
Silas W. Dooley for respondent.
(1) The motion to suppress the deposition came too late, and was properly overruled. (2) Appellant is liable. It cannot interpose a contract to evade its statutory duty, if contract was proved. Fell v. Coal Co., 22 Mo.App. 221; Speed v. Railroad, 71 Mo. 308; Iron Co. v. Erickson, 39 Mich. 492; Kelly v. Howell, 41 Ohio St. 438; Whittaker's Smith on Negligence, pp. 9, 10. In an action under this statute the only inquiry is, whether the requirements of the statute have been complied with, and, if not, whether the injury complained of was occasioned thereby. Spiva v. Coal Co., 88 Mo. 68. (3) The petition stated a cause of action against appellant. See acts relating to mines and mining, approved March 23, 1881, secs. 3, 16; Fell v. Coal Co., 23 Mo.App. 23. First. Injury caused respondent by failure to do what appellant was, and not what contractor was, to perform. Horner v. Nicholson, 56 Mo. 222; Lancaster v. Ins. Co., 92 Mo. 460; Shearman & Redfield on Negligence, sec. 77. Second. If defective it is aided by answer denying appellant was operator, and is good after verdict. Wagner v. Railroad, 97 Mo. 512; Garth v. Caldwell, 72 Mo. 622; Donaldson v. Butler Co., 98 Mo. 163; Coal Co. v. Brewington, 29 Mo.App. 16. Third. Petition good after pleading to merits. Elfrank v. Seiler, 54 Mo. 136; Kronski v. Railroad, 77 Mo. 368. (4) The instruction in the nature of a demurrer to the evidence was properly overruled. Where there is evidence tending to prove the issues the case must go to the jury. Groll v. Towner, 85 Mo. 249; Huhn v. Railroad, 92 Mo. 44; Sullivan v. Railroad, 97 Mo. 113. Failure to perform a statutory duty is negligence as a matter of law. Drain v. Railroad, 10 Mo.App. 535; Eswin v. Railroad, 96 Mo. 290. (5) The substantive facts constituting appellant's wilful neglect are alleged in the petition. They are: Knowledge on the part of appellant of the defect, and its neglect and failure to repair it, and these are carried into the second instruction. Staley v. Railroad, 74 Mo. 117; Crane v. Railroad, 87 Mo. 594; Kerr v. Simmonds, 82 Mo. 274; Battel v. Crawford, 59 Mo. 215; Conway v. Reed, 66 Mo. 352; Reynolds v. Railroad, 85 Mo. 94; Walker v. Martin, 8 Mo.App. 561. When suit is for a breach of statutory duty, the facts out of which it arises must be pleaded. Field v. Railroad, 76 Mo. 616. Respondent was justified in relying on assurances of pit boss. He had control of the underground work, with power to hire and discharge men. Speed v. Railroad, 71 Mo. 308; Thompson on Negligence (1870), secs. 27, 28, 29, pp. 904-7; Moore v. Railroad, 85 Mo. 588; Hyatt v. Railroad, 19 Mo.App. 295; Cooley on Torts, p. 90.
Ware, Biddle & Cory, also, for respondent.
(1) The court committed no error in refusing to suppress the deposition. (2) If the servant who has knowledge of defects in the instrumentalities furnished for his use gives notice thereof to his employers, who thereupon promise that they shall be remedied, the servant may recover for an injury caused thereby, at least, when the master requests him to continue in the service and the injury occurs before the expiration of the time within which the defects were promised to be remedied, and where the instrumentality, although defective, was not so imminently and immediately dangerous that a man of ordinary prudence would have refused longer to use it, his subsequent use of the defective instrumentality under such circumstances could not necessarily, or, as a matter of law, make the servant guilty of contributory negligence. Under such circumstances the servant may recover, although aware not only of the existence of the defects, but also of the risks to which they naturally expose him, and a railway company is not relieved from a charge of negligence in sending out an employe with a defective engine, simply because it did not have sufficient time after notice of the defect to repair it, and had no other engine in proper condition to send out. Green v. Railroad, 17 N.W. 378; Hough v. Railroad, 100 U.S. 213; Thorpe v. Railroad, 2 S.W. 3; cases reported in 89 Mo. 650; Huhn v. Railroad, 44 S.W. 927; s. c., 92 Mo. 440. (3) As to safe appliances and places for miners to work in mines, the same rule applies. Redden v. Railroad, 15 P. 262 (Utah) ; Durant v. Mining Co., 10 S.W. 484; s. c., 97 Mo. 62; Eddy v. Mining Co., 17 N.W. 17; Myers v. Iron Co., 22 N.E. 631; Railroad v. Graham, 22 N.E. 668; Fell v. Mining Co., 23 Mo.App. 216. (4) A mining boss represents the company, and his negligence is the negligence of the company. Redden v. Railroad, 15 P. 262.
Macfarlane, J. Barclay, J., alone does not agree to paragraph 1; Sherwood, C. J., Black, Brace and Gantt, JJ., do not agree to paragraph 4 of the opinion, but hold the petition insufficient in failing to charge a wilful violation of the act.
In Banc.
Action for damages on account of injuries received by plaintiff while working a coal mine of defendant, caused by a portion of the roof of the mine caving in on him. The verdict and judgment were in favor of the plaintiff for $ 7,000, and defendant appealed.
The negligence charged in the petition was a failure to furnish timbers to be used as props, to hold up and make safe the roofs and walls of the mines, and prevent them from caving, as required by a statute entitled "mines and mining," approved March 23, 1881, though frequently requested.
The answer was a general denial, a plea of contributory negligence and assumption of the risk of employment. It also contained a special plea that defendant was not the operator of the mine, nor was plaintiff in its employ or under its control, management or direction, or that of any of its agents or servants; but on the contrary charged that the plaintiff was in the employ and exclusive control of one Wilson, who was operating said mine as an independent contractor.
I. The suit was brought to the February term, 1887, and was against defendant and one Alexander Wilson.
On the fourth of June, two days before the commencement of the June term, plaintiff refiled a deposition of one M. R. Leslie, which had been taken in a previous suit between plaintiff and defendant mining company alone. No written notice was given defendant of the filing of this deposition. On the seventeenth day of November, 1887, ten days after the beginning of that term of court, defendant filed a motion to strike from the files said deposition for the reason that the parties to the suit in which it was taken were not the same as the parties to this suit.
On the eighth of March, the day upon which the trial commenced, plaintiff dismissed his suit as to the defendant Wilson, and, thereupon, defendant at once filed a motion to suppress Leslie's deposition for the reason that no notice had been given of the place at which it should be taken, the notice specifying the state of Missouri, and the deposition having, in fact, been taken in the state of Minnesota. This motion was overruled on the ground that it came too late, and the defect had been waived. This ruling constitutes the first assignment of error.
The following rule of court relative to depositions was in force "All exceptions to depositions, except for incompetency, or irrelevancy, shall be considered waived unless filed within two term days after notice of the filing of such depositions has been served on the opposite party, or his attorney, and if no such notice shall have been given such exceptions must be filed at least two days before the cause is set for trial; but, if the cause is set for trial on the first, second or third day...
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