Mount v. Western Coal & Mining Co.

• Decision Date: 08 April 1922
• Docket Number: No. 22116.,22116.
• Court: Missouri Supreme Court
• Parties: MOUNT v. WESTERN COAL & MINING. CO.

242 S.W. 943

294 Mo. 603

MOUNT v. WESTERN COAL & MINING. CO.

No. 22116.

Supreme Court of Missouri, Division No. 1.

April 8, 1922. Motion for Rehearing Denied

June 16, 1922.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by James Mount against the Western Coal & Mining Company. From judgment for plaintiff, defendant appeals. Affirmed on condition of a remittitur.

James F. Green, of St. Louis, and Harvey C. Clark, of Jefferson City, for appellant. Lyons & Ristine and Horace F. Blackwell, all of Lexington, for respondent.

JAMES T. BLAIR, J.

Respondent is an experienced coal miner, and was injured in appellant's mine. He recovered a judgment for $20,000, and this appeal followed. The mine is deep. Machines are used to cut the dirt from beneath the coal. The vein is about 3 feet thick. Beginning at the bottom of the shaft the coal is cut in constantly widening circles, of which the shaft is the center. The uncut coal is called the face. The cutting machine is operated by electricity. It weighs 2,800 pounds, and stands near the face on rails placed for that purpose. Four rails are employed. The machine stands on two. The other two are placed in front of the machine, and it moves out upon these when it has finished cutting under coal adjacent to it in its position on the other two. Then these last are taken up and laid in front of the machine again, and so the work proceeds. These machine rails are about 6 or 7 feet long and are held in place by jacks. The cutting machine "has an arm about 2½ feet long, upon which works an endless chain. This arm is extended beneath the vein of coal; the moving chain cuts the earth under the coal; "and thereafter" miners, who are called loaders, follow and break it up, load it into small cars, which run on a track called the face track, and it is then hauled to the shaft and hoisted to the surface. The refuse which results from this cutting process is thrown back some 7 feet from the face and the heap which is thus created is called the gob. Roadways lead from the shaft to the face. The space along the face is laid out into rooms about 80 feet long. The division lines are imaginary. As the "face of the coal gets farther away from the shaft; no roof slate over the gob is supported by pillars or props." The working place was low, and the men worked in a stooping position a machine crew consists of a machine runner, a jack setter, a spragger, and a shoveler. The machine runner operates the machine and is in charge. The jack setter, or rail setter, sets the rails upon which the machine moves along the face. The spragger's duty is to "keep the dirt out away from the machine and away from the chain as it revolves." This he does with a sickle-shaped instrument. The shoveler shovels back the dirt and "watches the coal to keep the coal off of him, and throws up the rails" from behind the machine when it has moved off of them, and takes down and passes forward the jacks which had held the rails down. When the machine is in operation it makes a great deal of noise and causes considerable vibration. The jack setter, as he works before the machine, looks out for loose roof, and, if he discovers any, reports it to the machine runner. It is the duty of the latter to see that the roof is secure or is made secure over the place of work as the crew moves forward. The witnesses say the spragger and shoveler have no time to watch the roof. They rely upon the others whose duties are as stated.

The evidence tends to show that the accident occurred in what is known as Lonnie Robinson's room. Robinson testified:

The roof had been loose for some weeks before, and a part of it, back of the place of injury, had previously fallen; that the part of the roof which fell on this occasion had shown cracks for three or four days; that he sounded the roof each morning and afternoon, and always found it "drummy"; that this sound meant it was loose. "Q. But you didn't think it was dangerous to work under it, did you? A. Why, sure, it was dangerous to work under; but, of course, I watched it. Q. But, at any event, you thought it was safe to continue to work under it? A. Yes, sir. Q. And you didn't think it necessary to put any props under it? A. No, sir."

He also testified that it was a loader's duty to "sound the room" to determine its condition, and that the longer a loose roof stands the looser it becomes.

At the time of the injury to respondent the machine was in operation. Just previously the jack setter had "found some loose roof." He notified the machine runner, who did not stop the machine, but came forward and looked at the suspected place. He sounded the roof, but did nothing more, and said nothing, but returned to the machine and kept it going. Respondent, then acting as shoveler, knew nothing of this interchange or of the condition of the roof. He continued along with the machine. When respondent, in the performance of his duties, had reached the spot immediately beneath the loose roof, a part of It, about 20 feet long and several feet wide, fell. The slab which struck him weighed 1,500 Pounds or more. He was seriously injured.

I. (1) Appellant contends that there was no evidence ending to prove the roof was in such dangerous condition that it was incumbent upon it to do more than the evidence shows was done; that the only testimony in the record upon the point was offered by respondent, and shows that inspection was made, and that it was made with due care by those whose duty it was to make it, and that It is affirmatively shown that this inspection disclosed no condition so dangerous as to call for further precaution. It is insisted that this appears from Taylor's testimony, and that his testimony is all the evidence there is upon the subject. Appellant concedes that

"Any evidence of a dangerous condition of which appellant had knowledge, either actual or constructive, would be sufficient to take the case to the jury."

It also concedes that "respondent would not be bound by the testimony of one witness if it was in conflict with his other testimony," but urges that Taylor was the only witness to the point, and his testimony disproved the need for further precautions. There is no question that the burden was upon respondent to show negligence. It is clear that it was the duty of appellant to use ordinary care to render respondent's working place reasonably safe (Clark v. Iron Foundry Co., 234 Mo. loc. cit. 449, 450, 137 S. W. 577, 45 L. R. A. [N. S.] 205), and that the care required is such

"as a reasonably prudent man would exercise under like circumstances in order to protect his servants from injury. It must be commensurate with the character of the service required, and with the dangers that a reasonably prudent man would apprehend under the circumstances of each particular case. Obviously, a far higher degree of care and diligence is demanded of the master who places his servant at work digging coal beneath overhanging masses of rock and earth in a mine than of him who places his employé on the surface of the earth, where danger from superincumbent masses is not to be apprehended." Railway Co. v. Jarvi, 53 Fed. 65, 3 C. C. A. 433; Western Coal & Mining Co. v. Ingraham, 70 Fed. loc. cit. 220, 221, 17 C. C. A. 71.

It is not denied the duty of inspection rested upon appellant, and there is no contention that negligence, if any, on the part of those chosen by appellant to perform this duty for it is negligence for which it is responsible. It is simply contended that respondent has affirmatively shown by uncontradicted evidence that the duty of inspection was properly performed, and no cause of apprehension of danger discovered, and that this ends the case. In a respect or two, so far as concerns, the question under consideration, appellant is in error as to the status of Taylor, the jack setter. There was ample evidence from which the jury could have found that the jack setter had nothing to do with roof inspection, except, since he worked ahead of the machine, to call the attention of the machine runner to loose roof, and that this duty did not depend upon anything except a discovery of loose rock, and did not entail any responsibility upon his part, except that of notifying the machine runner of it, whose duty it was to inspect the place thus called to his attention, and determine what was to be done. Upon this view the testimony of Taylor that he did not think the loose rock he discovered was dangerous is not the conclusion of an inspector, but the opinion of one charged with no duty to determine the question of safety. In addition, Taylor, on this conception of his functions, had the right to rely upon the machine runner's judgment, as that of the master (Hall v. Coal & Coke Co., 260 Mo. loc. cit. 266, 168 S. W. 927, Ann. Cas. 1916C, 375), and the jury might...