Matthews v. Central Coal & Coke Co

• Decision Date: 01 June 1915
• Docket Number: No. 16700.,16700.
• Citation: 177 S.W. 650
• Court: Missouri Supreme Court
• Parties: MATTHEWS v. CENTRAL COAL & COKE CO.

177 S.W. 650

MATTHEWS v. CENTRAL COAL & COKE CO.

No. 16700.

Supreme Court of Missouri.

June 1, 1915.

In Banc. Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by R. S. Matthews, administrator of the estate of James Keown, deceased, against the Central Coal & Coke Company. From judgment for plaintiff, defendant appeals. Affirmed.,

James Keown sued for personal injuries received while working in defendant's coal mine. By the verdict of a jury and the judgment of the trial court, he was awarded $9,000 damages, and defendant appeals. Since the trial below Keown has died, and R. S. Matthews, his administrator, has been substituted as sole plaintiff.

Keown's injuries were caused by a large rock falling upon him from the roof of defendant's mine. The liability or nonliability of defendant company depends, in a large measure, upon whether it was the duty of Keown or the defendant to inspect and remove loose rock from the roof of the mine at the point where the injury occurred.

It is unnecessary to give a synopsis of the pleadings. They sufficiently present the issues above noted. Defendant also pleads generally contributory negligence and assumption of risk.

The defendant was operating a developed coal mine and employed a large number of men. There was a roadway or entry used by all of defendant's underground employés in reaching the places where they were required to work, which entry contained a rail. road track, used in pulling out the coal with mules after it had been placed on small cars by Keown and other miners. The mine was worked on the "room and pillar" plan; the miners receiving pay by the ton for coal mined and placed on cars by them. Along the entry, or roadway, rooms were cut into the coal and iron or steel tracks laid for the purpose of switching the coal cars into the various rooms. The neck of the room in which Keown received his injuries, which will hereafter be called his room neck, was 7 feet wide and 7 feet deep, and had been "turned" or excavated by a man named Julius nearly a month before the injury. Defendant's miners receive $2.98 for "turning" a room neck, and also credit for all coal they take out while excavating a room neck. Julius had received his pay for "turning" this room neck, and the room had been assigned to Keown, who had worked two days therein. He had excavated an opening some 20 feet beyond the room neck, but had not extended his room to its intended width of 24 feet. On the day before his injury Keown drilled and loaded two holes, one in the rear end of his room and the other in the side thereof about 6 feet from the room neck, which latter hole was intended to widen the room. After plaintiff had finished his day's work, defendant's shot firer exploded the powder which had been placed in these holes. One of the shots threw about a ton of coal into the room neck. Such shots sometimes throw coal 60 to 80 feet. About 8 o'clock the next morning Keown came to his work, found his room neck somewhat obstructed with loose coal, brought in a car, and began loading same, when a large rock fell from the roof near the middle of the room neck and injured his back severely, causing his lower limbs to become paralyzed. Up to this point there is no material conflict in the evidence. Keown, testifying in his own behalf, stated that he did not make a careful inspection of his room neck before going to work; that he casually looked at the overhead and, not seeing anything which appeared to be dangerous, immediately proceeded to load the loose coal found in the room neck. Keown admitted that he had testified during a former trial of this cause that he did not examine the room neck before he went to work. It was also admitted by Keown that, while a miner is excavating or cutting a room neck, he must make such inspections or tests of the roof thereof as may be necessary to ascertain whether or not such roof is safe, and that it is his duty to make like inspections of the roof of his room proper. This duty is described generally by some of the witnesses as the "miners' duty to inspect the place where he is required to work." The respective duties of Keown and defendant in regard to roof inspection were governed by unwritten rules of the defendant company, and there is a sharp conflict in the evidence as to what those rules were. Plaintiff contends that after a room neck is excavated, and defendant places its rails therein, it assumes the duty of inspecting and keeping such room neck in such reasonably safe condition that rocks will not fall from the roof thereof. Keown further testified that, under the rules of defendant, it assumed the responsibility of inspecting the necks to all rooms after they were excavated and the rails laid therein; that the defendant's day hands "make an inspection of roadways and room necks the first thing every morning" before the men who mine by the ton go to their work. Keown further testified that the day hands were taking down some loose rock from the roof of his room neck the day before he was injured at or near the place where the rock fell upon him; that the usual method of ascertaining whether overhead rock is loose or solid is to strike same with a sledge or pick; and that he could have discovered the dangerous condition of the rock which fell upon him if he had applied these tests, and that he omitted to make a test or inspection of the rock in the roof of his room neck because it was the defendant's duty and custom to do so, and he supposed that it had performed that duty as usual. Keown stated that a shot was liable to loosen rock over the place where the shot was fired, and he usually tested the rock in his room at the point where the shots were fired after each shot.

Jacob Julius, an experienced miner, testified that he "turned" the room neck where Keown was injured and saw the defendant's day men working on the roof of that room neck the day before the injury. He understood it was the duty of defendant, under its rules, to inspect the neck of rooms the same as the entry or roadway used by the men going to their work.

Three other witnesses, who worked in the same mine, testified for Keown that, under the rules of the company, it was defendant's duty to inspect the room necks and keep them in a safe condition after the rails were placed therein, and that it was not an act of carelessness on the part of Keown to load the loose coal in the room neck without making an inspection; of the roof thereof.

J. F. Green, a witness for defendant, testified that he had been digging coal 16 years and was working for defendant. He gave his understanding of the rules of defendant as follows:

"Q. Who has control of the seven feet room neck after it is finished? A. The company. Q. When is the room neck finished? A. The neck of it is finished when it is seven feet. Q. I will get you to state whether or not the miner who occupies the room has the neck tinder his control? A. After I am done with the neck; no, sir. Q. Who timbers it? A. The company. Q. Who takes down loose rock? A. The company. Q. Who inspects it? A. The day men. Q. When? A. Well, they are supposed to every morning."

Twelve experienced miners testified for defendant that it was not the duty of defendant to inspect room necks; that a miner working in a room was required to inspect the neck of his room the same as the body of his room. These witnesses admitted that i; was the duty of defendant to repair room necks when notified by the miners that they were dangerous, but they regarded Keown's room neck his working place the same as the room itself. Most of those 12 witnesses thought it an act of carelessness on the part of Keown to pick up coal in his room neck without inspecting the roof thereof. A few of said witnesses had never worked for defendant and did not know its rules. There was no evidence tending to prove that defendant inspected the room neck where Keown was injured on the morning his injury occurred.

B. R. Dysart and W. C. Goodson, both of Macon, for appellant. R. S. Matthews and Otho F. Matthews, both of Macon, for respondent,

I. Demurrer to Evidence.

BROWN, J. (after stating the facts as above).

Defendant complains of the action of the trial court in refusing three of its instructions, each of which was in effect a direction to the jury to find for defendant. We think the court did not err in refusing these last-named instructions. The evidence of six witnesses (one of them sworn by defendant) was to the effect that it was the custom and duty of defendant to inspect the room necks each morning before the miners began work to ascertain if there was in the roof thereof any loose rock, and that, if said inspection had been made, the loose condition of the rock which fell upon Keown would have been discovered in time to have prevented it from falling upon him.

There was evidence of two witnesses to the effect that defendant's day men removed some loose rock from the roof of Keown's room neck the day before his injury. This tends to corroborate Keown's witnesses as to the alleged duty of defendant to inspect and care for the room necks. Such corroboration was not strong, but its weight was for the jury.

Defendant's evidence (except that of its witness Green) tends to prove that it was not guilty of any negligence, because it was the duty of Keown and not defendant to inspect the roof of his room neck. The weight of the evidence on this controverted point was for the jury and the trial court, and not for the appellate...