Morgan v. Oronogo Circle Mining Co.

• Decision Date: 04 December 1911
• Citation: 160 Mo. App. 99,141 S.W. 735
• Parties: MORGAN v. ORONOGO CIRCLE MINING CO.
• Court: Missouri Court of Appeals

141 S.W. 735

160 Mo. App. 99

MORGAN v. ORONOGO CIRCLE MINING CO.

Springfield Court of Appeals. Missouri.

December 4, 1911.

1. MASTER AND SERVANT (§ 235)—INJURIES TO SERVANT—DUTY OF SERVANT.

It is the duty of a servant to exercise ordinary care to learn the dangers which are likely to beset him in his service.

2. MASTER AND SERVANT (§ 226)—INJURY TO SERVANT—ASSUMPTION OF RISK.

While a servant assumes the risk of injury from ordinary dangers of the employment, and such as are known to him or are discoverable by the exercise of ordinary care, he does not assume the risks due to the master's failure to exercise reasonable care; and hence the doctrine of assumption of risk cannot defeat a recovery by a servant injured through the failure of the master to provide safe appliances.

3. NEGLIGENCE (§ 1) — WHAT IS "NEGLIGENCE."

"Negligence" is the failure to observe for the protection of another person that decree of caution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

4. MASTER AND SERVANT (§§ 101, 102)—INJURY TO SERVANT—DUTY OF MASTER.

It is the duty of a master to exercise ordinary care, having regard to the hazards of the service, in furnishing his servant with a reasonably safe place in which, and reasonably safe appliances with which, to work.

5. TRIAL (§ 142)—DEMURRER TO EVIDENCE.

A demurrer to the evidence cannot be sustained where inferences in favor of either party may be deduced.

6. NEGLIGENCE (§ 134)—EVIDENCE — SUFFICIENCY.

Negligence is not a fact susceptible of proof by direct evidence, but must be inferred from all the evidence.

7. TRIAL (§ 156)—DEMURRER TO EVIDENCE— EFFECT.

Where a defendant demurs to the evidence, all of plaintiff's evidence is admitted to be true, together with all favorable inferences.

8. MASTER AND SERVANT (§ 265)—ACTIONS— EVIDENCE—NEGLIGENCE.

In an action for the death of a servant, negligence cannot be inferred from the mere fact that the servant who was riding on a cage which was being lowered into a mine fell off, and was killed.

9. MASTER AND SERVANT (§§ 286, 285)—ACTIONS—EVIDENCE—JURY QUESTION.

In an action against a master for the death of a servant, held, under the evidence, that the questions whether the master was guilty of negligence, and whether such negligence was the proximate cause of the injury, were for the jury.

10. MASTER AND SERVANT (§ 234)—INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE.

The mere fact that an injured servant had knowledge of danger in working with the appliances furnished will not amount to contributory negligence unless the peril was so obviously dangerous as to threaten immediate injury.

11. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—EVIDENCE—JURY QUESTIONS.

In an action against a master for the death of a servant, the question whether the servant was guilty of contributory negligence held, under the evidence, one for the jury.

12. DEATH (§ 79)—DAMAGES—INJURY TO ESTATE.

In an action by an administrator for the wrongful killing of his intestate, proof that the intestate was killed by reason of the negligence of the defendant, and that he left surviving him no wife or children, will entitle the administrator to recover nominal damages, though substantial damages are not proven.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Harry C. Morgan, as administrator of the estate of Joseph C. Morgan, deceased, against the Oronogo Circle Mining Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Geo. R. Clay and R. H. Davis, for appellant. Ray Bond, A. E. Spencer, and A. L. Berger, for respondent.

NIXON, P. J.

This was an action to recover damages for the death of Joseph C. Morgan, who lost his life in the mine of the defendant on the 27th day of October, 1909. The petition on which recovery was sought is as follows (formal parts omitted):

"Plaintiff for cause of action states that he is the duly appointed, qualified, and acting administrator of the estate of Joseph C. Morgan, deceased, having been appointed by the probate court of Jasper county, Mo. Plaintiff further states that defendant is and was at all the times herein mentioned a corporation, organized and existing under the laws of the state of Missouri, and was on the 27th day of October, and has been for months prior thereto, engaged in operating a mine near Oronogo, Mo., known as Oronogo Circle mine No. 5, which mine consists of a shaft, drifts, and the machinery and appliances used in connection therewith. Plaintiff further states that it was the duty of defendant to furnish its employés with a reasonably safe place in which to work, with reasonably safe tools and appliances, and reasonably safe machinery and appliances with which to lower its employés into said mine. Plaintiff further states that defendant used in its mine work animals, which were lowered into its said mine through a shaft of said mine by means of an open top cage, made of about 3 by 6 timbers and which was about 6 by 3 by 6 feet, and attached to a wire cable attached to hoisting machinery, which cable was what is known as a `dead cable'—that is, nontwisting cable; that on the day preceding the accident herein complained of defendant carelessly and negligently replaced said cable with what is known as a live cable—that is, a twisting cable—which would cause said cage, and which did while being lowered into the mine, to whirl and to strike the walls and sides of the shaft of said mine, and to strike a column pipe in said shaft running from the top to the bottom of the shaft. Plaintiff further states that defendant carelessly and negligently failed to take the twist out of said cable, as it was its duty so to do, before attempting to use said cable in lowering said cage and said work animals and deceased into said mine. Plaintiff further states that defendant carelessly and negligently failed and omitted to equip and provide guides or rails or other appliances to hold said cage in position, and to prevent it from tilting, whirling, and striking the walls and sides of said shaft and the column pipe in said shaft while descending into said mine.

"Plaintiff further states that the deceased, Joseph C. Morgan, was on the 27th day of October, 1909, in the employ of defendant at its said mine; that it was a part of the duties of deceased to stand on the top of said cage while its work animals were being lowered into said mine, and to aid and assist in the lowering of said cage and animals into said mine. Plaintiff further states that on the 27th day of October deceased, while in the employ of defendant, was assisting and aiding in the lowering of said cage and one of defendant's work animals into said mine, and while standing on the top of said cage, as he was required to do, without any fault, carelessness, or negligence on his part, said cage, by reason of the `twist' contained in the cable attached to said cage, was caused to whirl and tilt and to strike the sides of the walls of said shaft, and to strike the column pipe in said shaft, which tilting and whirling of said cage and the striking of said cage against the sides and walls of said shaft and said column pipe threw deceased from said cage to the bottom of said shaft, a distance of 160 feet, killing him instantly.

"Plaintiff further states that if defendant had, before attempting to lower the deceased into its said mine by means of said cage and cable, taken the twist out of said cable, or if defendant had equipped and provided guides, rails, or other proper appliances to guide and hold said cage in position, said cage would not have struck the side and walls of said shaft and the column pipe in said shaft and said accident would not have occurred. Plaintiff further states that the death of deceased was caused and brought about by reason of the carelessness and negligence of defendant in furnishing and supplying said cage with said cable without first having the twist taken out, and, further, by reason of the carelessness and negligence of the defendant in failing to furnish and provide proper and sufficient guides or rails or other appliances to hold said cage in position, and to prevent it from tilting and whirling and striking the sides and walls of said shaft and of the column pipe in said shaft while being lowered into the mine.

"Plaintiff further states that defendant had knowledge, or could have had knowledge by the exercise of ordinary care and prudence, of the dangerous condition of its machinery and appliances aforesaid, and of the danger to which deceased was exposed in being lowered into said mine with said machinery and appliances. Plaintiff further states that deceased left surviving him no wife, child, or children, natural born or adopted; that at the time of his death he was 21 years of age.

"Plaintiff further states that by reason of the premises the estate of Joseph C. Morgan, deceased, has suffered damages in the sum of $7,500, for which judgment is prayed."

Defendant pleaded, first, a general denial; second, contributory negligence of deceased, in that it was the duty of deceased to stand on top of the cage to aid and assist in lowering the cage and animals into the mine, and to prevent the cage from bumping, and that, although deceased knew that a new cable had been put on the night before which would cause more bumping than the old one, he negligently and carelessly failed to prevent, but permitted, the bumping, and that he was familiar with the work and the danger and the liability of the cage to bump, and that his own lack of attention to his duties and careless conduct permitted the bumping; and, third, that deceased's injuries were the result of the ordinary risks of the employment. The reply was a general denial. The case was decided in the court below upon a demurrer to plaintiff's evidence. Defendant introduced no evidence. The court instructed the jury to find for the defendant, which, together with...