Miles v. The Central Coal & Coak Company

• Decision Date: 19 May 1913
• Parties: NANNIE MILES, Widow of G. M. MILES, Deceased, and LUCENA MILES and MARGUERITE MILES, Minors, Lineal Heirs of G. M. MILES, Deceased, by NANNIE MILES, Their Next Friend, Respondents, v. THE CENTRAL COAL & COKE COMPANY, Appellant
• Court: Kansas Court of Appeals

157 S.W. 867

172 Mo.App. 229

NANNIE MILES, Widow of G. M. MILES, Deceased, and LUCENA MILES and MARGUERITE MILES, Minors, Lineal Heirs of G. M. MILES, Deceased, by NANNIE MILES, Their Next Friend, Respondents, v. THE CENTRAL COAL & COKE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 19, 1913

Appeal from Ray Circuit Court.--Hon. Francis H. Trimble, Judge.

Judgment affirmed.

Massey Holmes and Farris & Farris for appellant.

(1) The Kansas statute pleaded in the plaintiffs' petition refers to physical appliances and not to the manner of using these appliances, and there being neither averment nor proof that any of the appliances required by the statute were not maintained, this action must fail. Pennsylvania Statute of June 2, 1891, sec. 111 (3 Purdon's Digest, 13 Ed., page 2568); same Act. sec. 204 (Id., page 2577); Pennsylvania Act of May 15, 1893, set out in 3 Purdon's Digest, p. 2586; Pennsylvania Act of March 3, 1870 (2 Brightly's Purdon's Digest, p. 1181 [1883]); Act of April 22, 1870 sec. 22 (Ibid., p. 1182); Session Laws of Pennsylvania, 1911; Act of June 7, 1911, at p. 777, Article VIII, section 1; Same, at p. 830, Article XXVI, section 1; Hurd's Revised Statutes of Illinois, p. 1439, chapter 93 (1908), section 23; Same, section 28, p. 1440; Illinois Laws of 1911, p. 402 (Hurd's Rev. Stat. 1911, chap. 93, p. 1551); Illinois Laws of 1911, p. 413 (Act of June 6, 1911, section 22); Same p. 407, section 15; Hurd's Rev. Stat. (Illinois), 1874 p. 705 (Act of March 27, 1872); West Virginia, Code 1906 (Annotated), section 408; West Virginia Code Annotated (1909, Supplement), p. 501, section 9; Iowa Statutes, Session Laws of 1911, chap. 106, p. 116; Chap. 202 of Acts of 18th General Assembly of Iowa, which took effect July 4, 1880 (McLain's Anno. Stats. of Iowa, 1880), p. 445, section 11; Iowa Code Anno. (1897), section 2489; Session Laws of 1911, p. 113, chapter 106, section 28 (Iowa); Ohio Laws of 1910, section 28, p. 68 (Approved April 11, 1910); Durant v. Mining Co., 97 Mo. 64; Saversnick v. Swarzschild & Sulzberger Co., 141 Mo.App. 513; Hollingsworth v. National Biscuit Co., 114 Mo.App. 23, 24. (2) Assuming that the act of the appellant company in ordering or permitting the change from single belling to cross belling, as charged in the petition, was an act of negligence towards Miles, such act of negligence was not the proximate cause of the injury to Miles. The proximate and immediate cause was the intervening active negligence of Miles' fellow-servant, James Monay, in carelessly giving the signal to hoist the cage before the car was fastened on the cage. Rich v. Electric Co. (May, 1910), 152 N.C. 689, 68 S.E. 232, 30 L. R. A. (N. S.) 428; Kelley v. Railroad, 75 Mo. 138; Butz v. Cavanaugh, 137 Mo. 503; Kappes v. Shoe Co., 116 Mo.App. 171; Bridge Co. v. Seeds (C. C. A. 8th Cir. 1906), 144 F. 605, 11 L. R. A. (N. S.) 1041; Browning v. Railroad, 124 Mo. 55; Railroad v. Perigeuy, 34 N. E. (Ind. Sup. Ct.), 233; Trewatha v. Buchanan, etc., Co., 28 Pac. (Cal. Sup.) 571; Roe v. Thomason, 61 S.W. (Civ. App. Texas, 1901), 528; Rose v. Railroad, 17 S.W. (Tex. Sup. 1891) 789; Berns v. Gaston, etc., Co., 27 W.Va. 285, 55 Am. Rep. 304; Relyea v. R. R. Co., 112 Mo. 86; Railroad v. Woolley, 28 So. (Miss. Sup. 1900) 26; Hoffman v. Clough, 17 A. (Pa. Sup. 1889) 19; Traner v. Mining Co., 148 S.W. (Mo. Sup., May, 1912) 70; Hoover v. Ry. Co. (Pa. Sup. 1899), 43 A. (Pa. Sup. 1889) 74. (3) Miles was, as a matter of law, guilty of contributory negligence in going upon the cage at the time and under the circumstances of the injury. Hurst v. Railroad, 163 Mo. 309; Mathews v. Railroad, 227 Mo. 241. (4) It was error for the trial court to refuse to give defendant's instruction number 7 in the form requested and to modify the same by expunging therefrom the words, "or if he relied partly upon such assurance and partly upon his own judgment that he would not incur danger by the use of such system." Knorpp v. Wagner, 195 Mo. 637. (5) It was error to instruct the jury, as was done in plaintiff's instructions No. 6 and 7, that Miles was not guilty of contributory negligence unless the danger threatened was so "immediate" and "glaring" and "obvious" that a person of ordinary care would have refused to work, etc. This virtually deprived defendant of the benefit of its plea of contributory negligence. Bradley v. Railroad, 138 Mo. 293; Bennett v. Lime Co., 146 Mo.App. 578.

Lavelock & Kirkpatrick and Wheeler & Denison for respondents.

(1) No exception by appellant here, defendant below, to the overruling of motion for a new trial is exhibited in bill of exceptions, therefore there is nothing to be considered by this court here. McKee v. Dry Goods Co., 152 Mo.App. 247; Monroe v. United Railways Co., 154 Mo.App. 39; Flowers v. Raupp, 87 Mo.App. 454; State v. Weinegard, 168 Mo. 491; Perry v. Wheler, 63 Kan. 870, 66 P. 1007; Terre Haute v. Fargan, 21 Ind.App. 371, 52 N.E. 457; Achenbach v. Pollock, 64 Neb. 436, 90 N.W. 304; Ross v. Railroad, 141 Mo. 390, 395; State v. Waer, 145 Mo. 162, 204, 205; Critchfield v. Linville, 140 Mo. 191, 192; State v. Taylor, 134 Mo. 107, 137; State v. Prather, 136 Mo. 20, 25. (2) Violation of the Kansas statute by defendant, requiring that there should also be maintained between the top and bottom of the shaft, the ordinary means of signaling, is negligence per se. Brannock v. Elmore, 114 Mo. 55; Schlereth v. Railroad, 96 Mo. 509; Karle v. Railroad, 55 Mo. 476; Railroad v. Kennedy, 2 Kan.App. 693; Erb v. Morash, 8 Kan.App. 61. (3) The petition originally filed in this action in the court below, contains a count of both common law and statutory grounds of negligence. 1 Bates Pleading, Practice, Parties and Forms, 227; Jarrett v. Apple, 31 Kan. 693; Gebhardt v. Transit Co., 97 Mo.App. 374. (4) The Kansas statute pleaded in plaintiff's petition in the court below, requiring the ordinary means of signaling between the top and bottom of the shaft, means not only the physical appliance itself, by which a signal can be produced, but also the necessary force to operate it. Bodie v. Railroad, 39 S. E. (S. C.) 715; 5 Words and Phrases, page 4454; 1 Words and Phrases, 455; 3 Wood on Railway Law, 1487; 36 Cyc., 1108. (5) The proximate and primary cause of Miles' death was the maintaining of a cross belling system, and not any intervening negligence on the part of Miles' fellow-servant, James Monay. Sherman & Redfield on the Law of Negligence, 5 Ed., sec. 234; Reagan v. Railroad, 93 Mo. 348; 1 Master and Servant, Labatt, sec. 207; Railroad v. Watts, 63 Tex. 549; McKillip v. Railroad, 23 Sc. Sess. Cas., 4th Series, 768; Gibson v. Nimmo, 22 Sc. Sess. Cas., 4th Series, 491; Waller v. Railroad, 50 Mo.App. 410; Meade v. Railroad, 68 Mo.App. 92. (6) Miles as a matter of law was not guilty of contributory negligence contributing to his death. Shortel v. St. Joseph, 104 Mo. 115; Steinhauser v. Spraul, 114 Mo. 551; Stephen v. Railroad, 96 Mo. 207; Wurtenburger v. Railroad, 68 Kan. 642. (7) It was not error for the trial court to refuse defendant's instruction 7, and to modify the same by expunging therefrom the words "or if he relied partly upon such assurance and partly upon his own judgment that he would not incur danger by the use of such system." Cole v. Transit Co., 81 S.W. 1138; 1 Master and Servant, Labatt, 1264, 1270; citing Aldridge v. Furnace Co., 78 Mo. 559; Monohan v. Clay & Coal Co., 58 Mo.App. 68. (8) It was not error for the trial court to give instructions 6 and 7 requested by plaintiff that Miles was not guilty of contributory negligence unless the danger threatened was so obvious and glaring as to threaten immediate injury. Wurtenberger v. Railroad, 68 Kan. 643; Young v. Railroad, 82 Kan. 333; Stephens v. Railroad, 96 Mo. 207.

JOHNSON, J. Ellison, P. J., concurs; Trimble, J. not sitting, having presided at the trial in the circuit court.

OPINION

JOHNSON, J.

--Plaintiffs, who are the widow and heirs-at-law of G. M. Miles, deceased, instituted this action against defendant to recover damages on the ground that the death of Miles, which occurred May 10, 1911, in a coal mine operated by defendant in Crawford county, Kansas, was caused by defendant's negligence. In addition to a general denial the answer pleads contributory negligence, assumed risk and that the death of Miles was caused by negligence of a fellow-servant. Miles was a miner of many years experience and was employed in defendant's mine as a cager. He and another miner, named Monay, were stationed at the bottom of the shaft at the hoist and their duty was to put on and remove from the cages loaded and empty coal cars used in the transportation of coal from the bottom to the top of the shaft. The shaft was 125 feet deep and approximately 600 tons of coal was carried to the top each day. Two cages moving up and down the shaft in adjoining compartments were used in carrying this output. Steam power raised and lowered them and the engine was at the top near the mouth of the shaft. The engineer moved the cages only on signals from the cagers and the means of communication consisted of a speaking tube and a bell in the engine room which was connected by wire with the bottom of the shaft and was rung by the cagers, each of whom from his station could ring the bell and thus signal the engineer.

The cages were so operated that while one carrying the loaded car was being hoisted, the other returning an unloaded car was being sent to the bottom. There was room in each cage for only one car and the car stood on a track laid in the floor of the cage of the same gauge as tramways that ran from the foot of the shaft into the mine. There was a sump or pit at the bottom of the shaft that allowed the floors of a cage to be lowered to a level with the floor of the mine and its...