Mount v. Western Coal & Mining Co.

• Decision Date: 16 June 1922
• Parties: JAMES MOUNT v. WESTERN COAL & MINING COMPANY, Appellant
• Court: Missouri Supreme Court

242 S.W. 943

294 Mo. 603

JAMES MOUNT v. WESTERN COAL & MINING COMPANY, Appellant

Supreme Court of Missouri, First Division

June 16, 1922

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Affirmed (upon condition).

James F. Green and Harvey C. Clark for appellant.

(1) Where negligence is charged it must be proved. The plaintiff introduced only one witness as to the condition of the roof and the degree of care used by the defendant's machine-runner. This witness testified that the roof was not dangerous; that props were not necessary, and that the machine-runner exercised good judgment in not propping it. (2) Negligence is never presumed, and a party calling a witness to testify to conditions is bound by his testimony if it constitutes the only evidence in the case on the proposition involved. (3) Proof that the roof fell does not raise a presumption of negligence which the defendant must rebut. No burden falls upon the defendant until plaintiff introduces evidence tending to show a failure to perform some duty devolving upon it. Unless plaintiff makes such showing the case is not for the jury. (4) The first paragraph of plaintiff's instruction numbered 1 tells the jury, in effect, that it was defendant's duty to make the roof absolutely safe, imposing upon it the obligations of an insurer. The only obligation on the defendant was to use ordinary care. Bowen v. Railroad, 95 Mo. 276; Williams v. Railroad, 119 Mo. 316. (5) The verdict is excessive. Dominick v. Western Coal & Mining Co., 164 S.W. 567; Lessenden v. Railroad, 238 Mo. 247; Lyons v. Railroad, 253 Mo. 165; Norris v. Railroad 239 Mo. 695.

Lyons & Ristine and Horace F. Blackwell for respondent.

(1) The court did not err in refusing to instruct the jury to return a verdict for the defendant at the close of plaintiff's case. Plaintiff's evidence abundantly established his right to have his case submitted to the jury. Smith v Kansas City, 125 Mo.App. 150; Hoover v. Western Coal & Mining Co., 160 Mo.App. 326; Shimp v. Stove Co., 173 Mo.App. 423; Boten v. Ice Co., 180 Mo.App. 101; Anderson v. Western Coal and Mining Co., 138 Mo.App. 76; Lackland v. Coal Mining Company, 110 Mo.App. 634; Carter v. Baldwin, 107 Mo.App. 217; Peetz v. Transfer Co., 198 Mo.App. 155; Snyder v. Mining Co., 206 S.W. 593; Higberg v. Railroad, 164 Mo.App. 514; Gambino v. Coal & Coke Co., 180 Mo.App. 643; Haggard v. McGrew Coal Co., 200 S.W. 1072; Wojtylak v. Coal Co., 188 Mo. 260; Adair v. Terminal Ry. Co., 220 S.W. 926; Corby v. Tel. Co., 231 Mo. 439; Clark v. Iron & Foundry Co., 234 Mo. 436, 450; Hall v. Coal & Coke Co., 260 Mo. 351, 365. (2) The court did not err in giving plaintiff's instruction numbered 1. This instruction was strictly within the pleadings and the evidence and has been approved. Popino v. Brick & Coal Co., 168 Mo.App. 547; Gambino v. Coal & Coke Co., 180 Mo.App. 643; Garard v. Coal & Coke Co., 207 Mo. 242, 258. (3) Plaintiff did not know that the roof slate was loose, and he had a right to rely on the judgment of the defendant's machine-runner, who was the boss of the crew. Smith v. Kansas City, 125 Mo.App. 150; Hoover v. Western Coal & Mining Co., 160 Mo.App. 326; Shimp v. Stove Co., 173 Mo.App. 423; Boten v. Ice Co., 180 Mo.App. 96; Anderson v. Western Coal & Mining Co., 138 Mo.App. 76; Corby v. Telephone Co., 231 Mo. 417, 439; Clark v. Iron & Foundry Co., 234 Mo. 436, 450; Adair v. Terminal Railway, 220 S.W. 926; Shortel v. St. Joseph, 104 Mo. 114; Stephens v. Railroad, 96 Mo. 212. (4) The verdict is not excessive. Yost v. Railroad, 245 Mo. 219; Cambron v. Railway, 165 Mo. 543; Oglesby v. Railroad, 150 Mo. 137; Hill v. Union E. L. & P. Co., 260 Mo. 100; Markey v. Railroad, 185 Mo. 348; Clark v. Railroad, 234 Mo. 396; Corby v. Telephone Co., 231 Mo. 417; Moore v. Railroad, 268 Mo. 46; Gordon v. Railroad, 222 Mo. 516; Turnbow v. Rys. Co., 277 Mo. 644; Smith v. Southern Ry., 279 Mo. 173; Waldhier v. Ry. Co., 87 Mo. 37.

OPINION

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 three 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 2800 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 six or seven feet long and are held in place by jacks. The cutting machine "has an arm about two and one half 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 seven 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 eighty feet long. The division lines are imaginary. As the "face of the coal gets farther away from the shaft, the 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 railsetter, 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 twenty feet long and several feet wide, fell. The slab which struck him weighed fifteen hundred pounds or more. He was seriously injured.

I. (1) Appellant contends that there was no evidence tending 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 it 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...