McDaniels v. Royle Mining Co.
| Decision Date | 27 February 1905 |
| Citation | 85 S.W. 679,110 Mo.App. 706 |
| Parties | NANCY McDANIELS, Respondent, v. ROYLE MINING CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Cause affirmed.
Howard Gray and Frank L. Forlow for appellant.
Section 8820, R. S. 1899: "In case of death a right of action shall accrue to, . . . or to any person or persons who were before such loss of life dependent for support on the person killed, for a like recovery of damages." (2) Section 8822 provides that the owner, agent or operator of any mine shall keep a sufficient supply of timbers when required, to be used as props so that workmen may, at all times be able to properly secure said workings from caving in, and it shall be the duty of the owner or agent to send down all such props when desired. (3) It may be conceded, that if the defendant complied with the provisions of section 8822, then the plaintiff cannot recover in this action. Boemer v. Lead Co., 69 Mo.App. 601; Bowerman v. Mining Co., 98 Mo.App. 308. (4) It must appear by the evidence that the plaintiff was at the time of the death of her son dependent in fact upon him for support, and in this case the plaintiff's evidence does not so show. Bowerman v Mining Co., 98 Mo.App. 315. (5) Taking out the incompetent evidence offered by plaintiff, which did not tend to show a violation of section 8822, and the evidence of plaintiff's witnesses, as well as for the defendant shows that the defendant at no time violated that section of the statute, as was found in the Bowerman case, supra, but that the defendant with fidelity complied with the letter of the law. (6) If this verdict can stand under section 8822 and the evidence in this case then it is an impossibility for any company to comply with the provisions of that section of the statute. (7) Under the evidence of plaintiff, which was all of the evidence on this point, she was not actually dependent upon her son for support at the time of his death, and not entitled to substantial damages. Bowerman case, supra.
Blair Decker & Blair and Gardner & Cameron for respondent.
(1) Plaintiff was dependent upon the deceased for her support and is entitled to recover. Bowerman v. Mining Co., 98 Mo.App. 308. (2) The evidence shows that defendant failed to send down into said mine a sufficient supply of timbers, and that the death of Marvin McDaniels was the result of said failure. Therefore, plaintiff is entitled to recover. Bowerman v. Mining Co., 98 Mo.App. 308; Boemer v Lead Co., 69 Mo.App. 601.
This suit is brought under sections 8820 and 8822, Revised Statutes 1899, for damages for the death of plaintiff's son, Marvin McDaniels, who was at the time of his death about twenty years of age and unmarried.
The son was killed while in the employ of defendant as a miner in its mines near Duenwig, in Jasper county. The negligence on which plaintiff seeks to recover was the failure of defendant to furnish a sufficient supply of timbers, when required, to be used as props by the miners so that they might be able to secure the safety of the mine from caving earth; and in failing to send such timbers down into the ground; and basing her right to recover on the claim that she was dependent upon her said son for support.
There was evidence that plaintiff was sixty-four years of age, a widow and without property; that the son provided her with provisions, clothing and house rent; that he was earning $ 2.25 a day and devoted it to the support of his mother and himself; and that he gave her in the way of such support about $ 250 in the course of a year. The plaintiff, who was the only witness testifying as to that point, stated on cross-examination that her son had been at Duenwig about two years previous to his death, during which time he was working around the mines; that in December, before his death, plaintiff and one of her sons with his wife and infant child went to said place and rented a small house, and that deceased lived there with them, the two sons paying rent and housekeeping expenses; and that immediately after the death of her said son, Marvin, plaintiff went to Laclede county where she lived with her other children.
The mine in question was a zinc mine and it is conceded that the earth was soft and that timbers were necessary in the drifts to prevent a caving of the earth. Plaintiff's son was killed as the result of the falling of earth upon him while he was at work in said mine. But defendant contends that the caving of the earth which killed deceased did not come from defendant's mine but from that of the Red Bud mine, the two being in juxtaposition. It was shown that there was a hole in the roof of defendant's mine some ten feet above the props and that it had not been what the miners call "timbered up" to the roof at said point and wedged in securely with cord wood; that the attention of defendant's superintendent was called to the matter some time before the accident; and that dirt had been falling there, of which he had knowledge. There was further evidence tending to show that the proper way to secure earth of the nature in question was to wood or key it up to the roof, and that more timbers should have been used than were furnished and that said superintendent was notified that more timbers were required, but they were not sent down. The defendant's evidence was strong that the caving of the earth was from the Red Bud mine, the lean of the timbers inspected after the accident indicating such to have been the fact. But witnesses, experienced miners, testified that the indications were that the cavein occurred from defendant's mine and was the result of...
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