Morgan v. Oronogo Circle Mining Company

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

141 S.W. 735

160 Mo.App. 99

HARRY C. MORGAN, Administrator, Appellant, v. ORONOGO CIRCLE MINING COMPANY, Respondent

Court of Appeals of Missouri, Springfield

December 4, 1911

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

George R. Clay and R. H. Davis for appellant.

(1) The demurrer to the testimony was improperly sustained and the nonsuit should have been set aside and a new trial granted because the evidence showed that defendant was negligent in having made no effort to take the "twist" out of the cable, and the testimony shows that the cage was not equipped with guides or rails to guide it through the shaft and defendant was negligent in not so equipping the cage. Guffey v. Railroad, 53 Mo.App. 469; Erwin v Railroad, 94 Mo.App. 297; Seals v. Whitney, 130 Mo.App. 419; 26 Cyc. 1107; Smith v. Fordyce, 190 Mo 25; Jones v. Railroad, 178 Mo. 548; 1 Labatt on Master and Servant, sec. 40; Bean v. Navigation Co., 24 F. 124; Nyback v. Lumber Co., 109 F. 738; Mining Co. v. Fullerton, 69 F. 23. (2) The plaintiff did not assume the risk arising from defendant's negligence. If plaintiff was furnished unsafe implements and appliances, a question of contributory negligence arises, but not assumption of risk. Cole v. Transit Co., 183 Mo 94; Strickland v. Woolworth, 127 S.W. 628. (3) It was the duty of the court to submit to the jury the question of deceased's contributory negligence, if any; unless the danger and peril was so obvious that deceased must have known that the danger threatened immediate injury, and that he could not continue to work without injury. Dakan v. Chas, 197 Mo. 238; Curtis v. McNair, 173 Mo. 270. (4) The duty of the master to furnish his servant with reasonably safe tools and appliances is a personal duty and cannot be delegated, so as to escape liability. Combs v. Construction Co., 205 Mo. 367; Rodney v. Railroad, 127 Mo. 676. (5) The only risk which a servant assumes is the ordinary risk, such as happen on account of the nature of the business after the master has used reasonable care to avoid such result, but never assumes the risk of his master's negligence. McNair v. Curtis, 173 Mo. 280; Wendler v. Furnishing Co., 165 Mo. 537; Phippin v. Railroad, 196 Mo. 346; Charlton v. Railroad, 200 Mo. 433; Koener v. Car Co., 209 Mo. 157; Cole v. Transit Co., 183 Mo. 81; George v. Railroad, 225 Mo. 405; Garaci v. Construction Co., 124 Mo.App. 717; Jewell v. Bolt & Nut Co., 231 Mo. 194.

Ray Bond, A. E. Spencer and A. L. Berger for respondent.

(1) There was no evidence introduced in this case tending to prove actionable negligence on the part of defendant. Erwin v. Railroad, 94 Mo.App. 297, 68 S.W. 88; Scott v. Whitney, 130 Mo.App. 419, 110 S.W. 35; Cole v. Transit Co., 183 Mo. 94, 81 S.W. 1138; Curtis v. McNair, 173 Mo. 270, 73 S.W. 167; Smith v. Fordyce, 190 Mo. 25, 88 S.W. 679; Jones v. Railroad, 178 Mo. 548, 77 S.W. 896; 2 Thompson on Negligence, 983; Blanton v. Dold, 109 Mo. 64, 18 S.W. 1149; Winkler v. Basket Co., 137 Mo. 396, 38 S.W. 921; Holloran v. Foundry Co., 133 Mo. 47, 35 S.W. 260; Bennett v. Lime Co., 124 S.W. 612; Coin v. Lounge Co., 222 Mo. 488, 121 S.W. 1. (2) The burden is upon plaintiff to prove negligence as alleged in the petition and in this case it is apparent that plaintiff failed to support that burden of proof. Hodges v. Railroad, 135 Mo.App. 683, 116 S.W. 1131; Gordon v. Railroad, 222 Mo. 516, 121 S.W. 80; Newlin v. Railroad, 222 Mo. 275, 121 S.W. 125. (3) Plaintiff must also show that the defendant's negligence was the proxiate cause of the injury, and there was a total failure of proof in this respect. Werner v. Railroad, 138 Mo.App. 1, 119 S.W. 1076; Anderson v. Coal Co. , 138 Mo.App. 76, 119 S.W. 986; Hodges v. Railroad, 135 Mo.App. 683; Wilkerson v. Railroad, 124 S.W. 543; Trigg v. Land Co., 187 Mo. 227, 86 S.W. 222; Schmidt v. Transit Co., 120 S.W. 96. (4) The facts of this case leave no room for dispute or contrary opinions in reasonable minds as to the negligence alleged. It was a question therefore for the court and was properly decided by the court below. Hodges v. Railroad, 135 Mo.App. 683; Lawrence v. Ice Co., 119 Mo.App. 325, 93 S.W. 899; Henry v. Railroad, 76 Mo. 288, 43 Am. Rep. 762; Warner v. Railroad, 178 Mo. 125, 77 S.W. 69. (5) Under plaintiff's theory in this case as developed at the trial, and in his brief it must be held that deceased was guilty of contributory negligence. Cole v. Transit Co., 183 Mo. 94, 81 S.W. 1138; Dakan v. Chase, 197 Mo. 238, 94 S.W. 944; Curtis v. McNair, 173 Mo. 270, 73 S.W. 167; Wendler v. Peoples H. F. Co., 165 Mo. 527, 65 S.W. 737; Pauck v. Beef Co, 159 Mo. 467, 61 S.W. 806; Huhn v. Railroad, 92 Mo. 447, 4 S.W. 937; Soeder v. Railroad, 100 Mo. 681, 13 S.W. 714. (6) Under the evidence in this case, the deceased assumes the risk incident to the performance of the duties imposed upon him by reason of his employment. Roberts v. Telephone Co., 166 Mo. 378, 66 S.W. 158; Thomas v. Railroad, 109 Mo. 199, 18 S.W. 980; Price v. Railroad, 77 Mo. 508; Steinhauser v. Spraul, 127 Mo. 562, 28 S.W. 620, 30 S.W. 102; Nugent v. Milling Co., 131 Mo. 245, 33 S.W. 428; Mathis v. Stock Yards Co., 185 Mo. 434, 84 S.W. 66; Coin v. Lounge Co., 222 Mo. 488, 121 S.W. 1; Pulley v. Oil Co., 136 Mo.App. 172, 116 S.W. 430. (7) By contracting for the performance of his duties the servant agrees to relieve the master from all dangers proximately resulting from such risks as are naturally incident to the employment, and from all injuries proximately resulting from such extraordinary or unusual risks, or risks arising from the master's negligence, as are actually or constructively known to one of ordinary understanding. Morgan v. Railroad, 136 Mo.App. 337, 117 S.W. 106; Rowden v. Mining Co., 136 Mo.App. 376, 117 S.W. 695; Reichart v. Packing Co., 136 Mo.App. 565, 118 S.W. 525; Werner v. Railroad, 138 Mo.App. 1, 119 S.W. 1036; Harris v. Railroad, 124 S.W. 576; Doss v. Rail road, 135 Mo.App. 643, 116 S.W. 458; Courter v. Merc. Co., 136 Mo.App. 517, 118 S.W. 505; Butz v. Const. Co., 137 Mo.App. 222, 117 S.W. 685; Welsh v. Dieter, 136 App. 260, 117 S.W. 97. (8) Even where the servant acts in the presence of the master, or under his orders, or relying upon the master's superior knowledge, or with the assurance of safety, or under promise of repair if the danger be so obvious that a man of ordinary caution and prudence would not incur it, the servant cannot recover. Burkhard v. Leschen, 217 Mo. 466, 117 S.W. 35; Pulley v. Oil Co., 136 Mo.App. 172, 116 S.W. 430; Buckner v. Stock Yards Co., 221 Mo. 700, 120 S.W. 766; Holloran v. Foundry, 133 Mo. 470, 35 S.W. 260; Lightner v. Grieb, 104 Mo.App. 173, 77 S.W. 764; Meyers v. Glass Co., 129 Mo.App. 556, 107 S.W. 1041; Blundell v. Mfg. Co., 189 Mo. 552, 88 S.W. 103; Stegman v. Gerber, 123 S.W. 1041. (9) There was no proof whatever of the measure of damages, the loss to the estate of deceased by his death, measured in money. Railroad v. Foreman, 174 F. 377; Swift v. Johnson, 138 F. 867; Railroad v. Townsend, 41 Ark. 382; Fordyce v. McCouts, 51 Ark. 509, 11 S.W. 694; Railroad v. Garner, 76 Ark. 555, 89 S.W. 550; Railroad v. Brown, 26 Kas. 443.

OPINION

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, Missouri.

"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, Missouri, 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 employees 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 employees 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 opentop cage, made of about 3 x 6 timbers and which was about 6 x 3 x 6 feet, and attached to a wire cable attached to hoisting machinery, which cable was what is known as a dead cable, that is, non-twisting 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...