McKinnon v. Western Coal & Mining Co.

• Citation: 96 S.W. 485,120 Mo.App. 148
• Parties: CHARLES McKINNON, Respondent, v. THE WESTERN COAL & MINING COMPANY, Appellant
• Decision Date: 18 June 1906
• Court: Court of Appeals of Kansas

96 S.W. 485

120 Mo.App. 148

CHARLES McKINNON, Respondent, v. THE WESTERN COAL & MINING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 18, 1906

June 18, 1906;

Appeal from Barton Circuit Court.--Hon. Henry C. Timmonds, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

R. T Railey for appellant.

(1) If the plaintiff, in an action based upon an ordinance, statute or the common law, has been guilty of contributory negligence, or if the facts disclose that he assumes the risk, he is not entitled to recover, whether his right be predicated upon either one or the other. Zimmerman v Railroad, 71 Mo. 488-9; Spiva v. Coal Co., 88 Mo. 73; Hanlon v. Railroad, 104 Mo. 388 to 390; Crumpley v. Railroad, 111 Mo. 157; Lynch v Railroad, 112 Mo. 437; Prewitt v. Eddy, 115 Mo. 304-5; Weller v. Railroad, 120 Mo. 653; Hayden v. Railroad, 124 Mo. 567; Kelsay v. Railroad, 129 Mo. 362; Lane v. Railroad, 132 Mo. 4; Huggart v. Railroad, 134 Mo. 673; Culbertson v. Railroad, 140 Mo. 61; Peterson v. Railroad, 156 Mo. 552; Davies v. Railroad, 159 Mo. 6; Van Bach v. Railroad, 171 Mo. 338; Holmes v. Brandenbaugh, 172 Mo. 65; Guyer v. Railroad, 174 Mo. 348; Riska v. Railroad, 180 Mo. 191; Mathis v. Stock Yards Co., 185 Mo. 447; Wojtylak v. Coal Co., 87 S.W. 516-17; Blundell v. Mfg. Co., 88 S.W. 105; Schmidt v. Railroad, Mo.App. ; Green v. Railroad, Mo.App. ; Watson v. Coal Co., 52 Mo.App. 366-7; Lien v. Railroad, 79 Mo App. 478; Adams v. Coal Co., 85 Mo.App. 495; Gro. Co. v. Railroad, 89 Mo.App. 534; Cogan v. Railroad, 101 Mo.App. 189; Asphalt Co. v. Railroad, 102 Mo.App. 469; Fanning v. Railroad, 103 Mo.App. 157-8; Wands v. Railroad, 106 Mo.App. 99; Ford v. Railroad, 59 N.W. 5; Reeves v. Railroad, 60 N.W. 244; Anderson v. Lumber Co., 69 N.W. 632; O'Malley v. Light Co., 32 N.E. 1119; s. c., 158 Mass. 135; Goodridge v. Mills Co., 35 N.E. 484; s. c., 160 Mass. 234; Cassaday v. Railroad, 41 N.E. 129; Knisley v. Pratt, 42 N.E. 986; s. c., 148 N.Y. 372; Railroad v. Reed, 63 N.E. 879-80; Britton v. Cotton Co., L. R. 7 Exch. 130. (2) In the case at bar plaintiff was an independent contractor, and was to receive seventy-two cents per ton for all coal taken out by him, and was to receive $ 1.12 1-2 per foot for removing the draw slate or "horseback." He was to be paid the same as the other miners throughout the district. Each miner, under his contract of employment, was to look after his own room and keep the roof of same in good condition. Every man was required to put up props, whether they were needed or not. (3) Where a miner is engaged in taking out coal from his room, and where the face of the room is transitory in its nature, and is being constantly changed by said miner by virtue of his contract of employment, the doctrine in regard to defendant being required to furnish a reasonably safe place in which to work, has no application, but the servant himself assumes all risks of injury, under such circumstances. Aldridge's Admr. v. Furnace Co., 78 Mo. 559; Jackson v. Railroad, 104 Mo. 448; Thomas v. Railroad, 109 Mo. 200; Roberts v. M. & K. T. Co., 166 Mo. 383; Livengood v. Lead & Z. Co., 179 Mo. 239-40; Kleine v. Shoe Co., 91 Mo.App. 102; Dickey v. Dickey, 86 S.W. 911; Gibson v. Freygang, 87 S.W. 3 (Mo. App.); Zeigenmeyer v. Lime & Cement Co., 88 S.W. 139 (Mo. App.); Henson v. A. P. Co., 88 S.W. 166-7 (Mo. App.); Heald v. Wallace et al., 71 S.W. 82 and following (Tenn.); C. C. & M. Co. v. Clay's Admr., 38 N.E. 613 (Ohio); Coal Co. v. Scheller, 42 Ill.App. 619; W. L. Co. v. O'Donnell, 101 Ill.App. 492; Merchant v. Mickelson, 101 Ill.App. 401; Litchfield v. Railroad, 76 N.Y.S. 80; Murphy, Admx., v. Railroad, 88 N.Y. 146; Frazer v. Lumber Co. , 45 Minn. 235; Allen v. Railroad, 37 S.W. 171 (Texas); Petaja v. A. I. M. Co., 66 N.W. 951 (Mich.); Carlson v. Railroad, 28 P. 497; Armour v. Hahn, 111 U.S. 313; City of M. v. Lundin, 58 F. 525; Railroad v. Jackson, 65 F. 48; Finalyson v. Mining Co., 67 F. 510; s. c., 14 C. C. A. 492. This class of work should not be confounded with that, wherein the miner is dealing with a permanent structure and in which the master is required to look after and keep the same in repair. Scott v. Railroad, 95 N.W. 892; Buey's Admx. v. Chess and Wymond Co., 84 S.W. 563. (4) In short, with full knowledge of all the facts, and with full knowledge of the further fact, that he was recklessly taking his life into his own hands, he proceeded to do that, which the court--as a matter of law--should say no prudent man should be permitted to do, under the same circumstances. He then, assumed all risks of injury--even if it were a permanent structure--and should not be permitted to recover herein. Porter v. Railroad, 71 Mo. 77-8; Aldridge's Admr. v. Furnace Co., 78 Mo. 559; Spiva v. Coal M. Co., 88 Mo. 73; Jackson v. Railroad, 104 Mo. 448; Thomas v. Railroad, 109 Mo. 200; Roberts v. Tel. Co., 166 Mo. 370; Livengood v. L. & Z. Co., 179 Mo. 239-40; Mathis v. Stock Yds. Co., 185 Mo. 434; Wojtylak v. Coal Co., 87 S.W. 506 (Mo.); Watson v. Coal Co., 52 Mo.App. 366; Adams v. Coal Co., 85 Mo.App. 495; Lee v. K. C. Gas. Co., 91 Mo.App. 616; Kleine v. Shoe Co., 91 Mo.App. 102; Anderson v. F. N. B. Co., 103 Mo.App. 386; Gibson v. Freygang, 87 S.W. 3; Zeigenmeyer v. Lime & Cement Co., 88 S.W. 139; Henson v. A. P. Co., 88 S.W. 166. (5) The foregoing evidence being undisputed, must be taken as true. It was therefore plaintiff's duty to look after his own room and to prop the roof of same, and not defendant's duty to do so. Farber v. Railroad, 139 Mo. 285; May v. Crawford, 150 Mo. 527; Davies v. Railroad, 159 Mo. 7; Hendley v. Railroad, 106 Mo.App. 27; Stanley v. Railroad, 87 S.W. 114; Felton v. Anderson, 66 S.W. 182; Railroad v. King, 51 S.W. 319; Scott v. Railroad, 95 N.W. 892; Buey's Admx. v. Chess & Wymond Co., 84 S.W. 563; Livengood v. Lead & Z. Co., 179 Mo. 239; (6) The plaintiff having sworn, that neither the gas nor dampness of the mine had anything to do with the falling of the slate, which injured him, this admission is to be taken as true, for the purposes of this case. Schafstette v. Railroad, 175 Mo. 155; Feary v. Railroad, 162 Mo. 105; Davies v. Railroad, 159 Mo. 6; Pratt v. Conway, 148 Mo. 298; Payne v. Railroad, 30 S.W. 150; State v. Turner, 110 Mo. 198; State v. Turlington, 102 Mo. 663; State v. Brooks, 99 Mo. 142; Bogie v. Nolan, 96 Mo. 91; State v. Peak, 85 Mo. 192; Shirts v. Overjohn, 60 Mo. 305; Hamilton v. Railroad, 89 S.W. 895; Cogan v. Railroad, 101 Mo.App. 188; Holmes v. Leadbetter, 95 Mo.App. 425; Erwin v. Railroad, 94 Mo.App. 297. (7) If this be considered as an action under the coal mining law, then it was the duty of plaintiff to allege in his petition, that demand had been made for props, and that defendant ignored said demand and negligently failed to furnish same, as requested. Barron v. Mo. L. & Z. Co., 172 Mo. 233; McIntosh v. Railroad, 103 Mo. 133; Barker v. Railroad, 91 Mo. 90; Case v. Zinc & L. Co., 103 Mo.App. 479; Cutshall v. McGowan, 98 Mo.App. 705; Dulaney v. Railroad, 21 Mo.App. 597; Leslie v. Coal Co., 110 Mo. 41. (8) The plaintiff therefore, must recover, if at all, upon the charge that a legal duty was imposed upon us to furnish props, without any demand having been made to furnish same. Waldhier v. Railroad, 71 Mo. 518; Hite v. Railroad, 130 Mo. 136; McManamee v. Railroad, 135 Mo. 447; Huston v. Tyler, 140 Mo. 263; McCarty v. Hotel Co., 144 Mo. 402; Chitty v. Railroad, 148 Mo. 74; Bartley v. Railroad, 148 Mo. 139; Cole v. Armour, 154 Mo. 350; Feary v. Railroad, 162 Mo. 96; Hesselbach v. St. Louis, 179 Mo. 524; Bagnell T. Co. v. Railroad, 180 Mo. 463; Yall v. Gillham, 187 Mo. 408; Pryor v. Railroad, 85 Mo.App. 368. (9) On the undisputed facts, the plaintiff was not only guilty of negligence directly contributing to his own injury, but said negligence, was the direct and proximate cause of his own injury. Wojtylak v. Coal Co., 87 S.W. 517; Blundell v. Mfg. Co., 189 Mo. 559; Mathis v. Stock Yds. Co., 185 Mo. 447; Livengood v. L. & Z. Co., 179 Mo. 241; Ries v. Railroad, 179 Mo. 7; Moore v. Railroad, 176 Mo. 542; Zumalt v. Railroad, 175 Mo. 311; Roberts v. Tel. Co., 166 Mo. 384; Davies v. Railroad, 159 Mo. 7; Culbertson v. Railroad, 140 Mo. 64; Spillane v. Railroad, 135 Mo. 426; Watson v. Railroad, 133 Mo. 246; Hudson v. Railroad, 123 Mo. 449; Weber v. Railroad, 100 Mo. 204; Powell v. Railroad, 76 Mo. 82; Dickey v. Dickey, 86 S.W. 911; Cogan v. Railroad, 101 Mo.App. 189; Gro. Co. v. Railroad, 89 Mo.App. 534; Adams v. Coal Co., 85 Mo.App. 495; Heald v. Wallace, 71 S.W. 86.

Cole, Burnett & Moore for respondent.

(1) We submit that this judgment should be affirmed, or the appeal dismissed, for appellant's failure to comply with the rules and print an abstract of the entire record. Jordan v. Railroad, 92 Mo.App. 81; Lawson v. Mills, 150 Mo. 429; State ex rel. v. Smith, 172 Mo. 454; Butler County v. Graddy, 152 Mo. 443; Bick v Williams, 181 Mo. 528; Sedgwick Co. v. Newton Co., 144 Mo. 301; State v. Hockaday, 98 Mo. 593; 1 Bouv. Law Dict., "File;" 13 Am. and Eng. Law (2 Ed.), 13 et seq.; 8 Ency. of Pleading and Prac., 923; 19 Cyc., p. 528; Dawson v. Cross, 88 Mo.App. 299; Rogerson v. Neal, 16 Pick. 370; French v. Neal, 24 Pick. 55. (2) Whether the danger was too glaring was for the jury. Adams v. Coal Co., 85 Mo.App. 486; Smith v. Coal Co., 75 Mo.App. 181; Weston v. Mining Co., 105 Mo.App. 708; Hamilton v. Mining Co., 108 Mo. 375; Thompson v. Railroad, 86 Mo.App. 149; Cardwell v. Railroad, 90 Mo.App. 34; Adams v. Machine Co., 110 Mo.App. 375; Adams v. Machine Co., 95 Mo.App. 119; Edwards v. Barber Co., 92 Mo.App. 227; Hamman v. Coal Co., 156 Mo. 232; Stafford v. Adams, 88 S.W. 1132; Nash v. Dowling, 93 Mo.App. 163; Haworth v. Railroad, 94 Mo.App. 221; Holmes v. Brandenbaugh, 172 Mo. 65. (3) Counsel say that where the face...