Morgan v. Temagami Mining Co.

• Decision Date: 01 March 1909
• Citation: Morgan v. Temagami Mining Co., 117 S.W. 90, 136 Mo. App. 241 (Kan. App. 1909)
• Parties: T. A. MORGAN, Respondent, v. TEMAGAMI MINING COMPANY, Appellant
• Court: Kansas Court of Appeals

117 S.W. 90

136 Mo.App. 241

T. A. MORGAN, Respondent, v. TEMAGAMI MINING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 1, 1909

Appeal from Jasper Circuit Court.--Hon. Haywood Scott, Judge.

REVERSED.

Judgment reversed.

A. E Spencer for appellant.

D. M Roper for respondent.

OPINION

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries received by him while in the employment of defendant. A trial to a jury resulted in a judgment for plaintiff. Defendant was engaged in mining in Jasper county and employed plaintiff as helper to the operator of a machine drill. The operator assisted by plaintiff attempted to drill a hole in a perpendicular wall of hard flint. The point selected was about four and a half feet above the floor and the hole was intended to be run on a lateral slant of about forty-five degrees. Finding it difficult to start the hole owing to the fact that the drill would not take hold but slipped, plaintiff took his pick and, standing in front of the drill facing it, attempted by picking at the place where the drill was working to help start the hole. A spall weighing about a pound and a half flew off and struck plaintiff on the left foot inflicting an injury.

Plaintiff contends that a defect in the machine was the proximate cause of the injury and that defendant was negligent in providing its servants with a defective and dangerous machine with which to work. His evidence tends to show that the sash or frame which held the drill in place was worn to an extent to allow the drill more play than it would have had in a proper sash. But we think the evidence of plaintiff fails to show a causal connection between this defect and his injury. Drill and pick were operating on the wall simultaneously at the place where the spall was detached. Plaintiff testified:

"Q. You were striking with your pick right at the point where you were trying to make the bit take hold? A. Yes, Q. And the object in striking was to break the surface of the rock so the bit would take hold? A. Yes, sir. . . . Q. And while you were striking with your pick and the drill was running, this little piece fell, while you were doing that, this rock fell? A. Yes. . . . Q. And you don't know what did break it off, whether the drill or the pick? A. No, sir. Q. You were simply working there, trying to break off some of this rock or something, and broke some of it off? A. Yes, sir."

The operator of the machine introduced as a witness by plaintiff did not know "whether the pick knocked the rock off or whether the machine knocked it off." He states it was difficult to start...