Nash v. St. Joseph Lead Co.

• Citation: 238 S.W. 584
• Decision Date: 07 March 1922
• Docket Number: No. 16900.,16900.
• Parties: NASH v. ST. JOSEPH LEAD CO.
• Court: Court of Appeal of Missouri (US)

238 S.W. 584

NASH v. ST. JOSEPH LEAD CO.

No. 16900.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Rehearing Denied March 23, 1922.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Suit by John Nash against the St. Joseph Lead Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Walter D. Bennick, of St. Louis, and Politte Elvins, of Bonne Terre, for appellant. Curlee & Hay and Safford & Marsalek, all of St. Louis, for respondent.

BIGGS, C.

Suit for personal injuries. Defendant operates a lead mine in St. Francois county, Mo. The petition charges that on or about the 13th day of November, 1917, the defendant in the operation of said mine negligently caused and permitted a large, heavy piece of rock and mineral in said mine to be and remain in an unstable position upon a ledge of rock, where it was likely to fall and strike employes of defendant below, and that the defendant negligently instructed and caused plaintiff to work in said mine below and near said rock where same was likely to strike and injure plaintiff. It is further alleged that the defendant negligently assured plaintiff that it was safe for him to work in said mine near and below said rock, and that, as a result of said negligence, the rock fell and crushed plaintiff's leg while he was engaged in his work in said mine.

The answer was a general denial, coupled with a plea of contributory negligence and assumption of risk.

Following the verdict of a jury there was a judgment for plaintiff in the sum of $3,000, from which the defendant appeals, claiming that the plaintiff did not establish a case against the defendant, and hence its demurrers to the evidence should have been sustained, and that the court erred in its instructions to the jury given at the request of the plaintiff.

The first assignment of error calls for an understanding of the material evidence in the case. In conducting its mining operations the defendant sunk a shaft into the ground, and from the bottom of the shaft constructed passages, or what are called drifts, extending laterally from the shaft into the body of ore. As the ore was blasted from the sides of these drifts or passages, ledges or bluffs would form on the side thereof one above the other. As the blasting was done the ore rock was broken and caused to fall to the floor or bottom of the drift. Tracks were constructed along the floor of the drift upon which the mine cars carried the ore to the shaft. For about a year previous to the accident plaintiff had been working as a shoveler in said mine, and it was his duty to load the broken ore into the cars.

Plaintiff testified that Joe Eads was the shift boss, and his immediate superior; that as such he directed the men, showed them what to do, what to work at, and also had the duty of inspecting the premises where plaintiff worked to see that it was in a safe condition for the men to work and that he also required the miners (another set of workmen different from the shovelers) to take loose rock down from the ledges if it was not safe. Plaintiff testified he had nothing to do with the matter of inspecting the place to determine whether or not it was safe for him to work in, and that this duty was attended to by Eads, the shift boss. On the day the plaintiff was injured he started to work at 7 o'clock in the morning, and was engaged in his usual work of shoveling the ore into the cars. The place where he was working was near one of these ledges or bluffs, the top of which was 12 or 14 feet above the floor of the mine. There had been blasting going on the night before, and the ore was piled upon the floor of the mine and against the face of the ledges. According to plaintiff's testimony, the top of the pile of ore from which he was shoveling did not extend as high as the bluff. When plaintiff went to work he noticed a large rock lying on top of the bluff. He stated that it was a big rock, kind of flat on the bottom, was about 3 feet square, and weighed about 1,200 or 1,500 pounds; that it was too large for him to lift, and that it was the shift boss' duty to see that it was removed. He stated that he saw the rock by the light of the small lamp which he carried on his cap. At about 8 o'clock Eads, the shift boss, passed where plaintiff was working, and the following occurred:

"Q. What was said between you and Mr. Eads, if anything, with regard to the rock that was up on the bluff? A. He come up and says, 'How is everything?' I says, `All right, except you ought to get the machine men and get that rock down from there laying up on that bluff there,' and he says, `All right, go ahead, and I will get the machine men down and take pre of it.' Q. You called his attention to it? Did you point the rock out to him? A. Yes, sir. Q. Before he told you, `All right, go ahead,' what did he do, if anything? A. He shined his light up and looked at it, and he says, `That's all right, go ahead and I will get the machine men and shoot it off' Q. What kind of light did he have? A. He had a big carbide light, a big reflector on it. Q. After he had looked at it that way, and had told you, `All right, go ahead, I will get the men to attend to it,' or words to that effect, what did you do? A. I went ahead to work."

Plaintiff testified that he thought there might be some danger of the rock sliding down, as it was hanging a little over the edge of.the bluff, and he therefore called Eads' attention to it; that he relied upon Eads to attend to removing the rock, as it was his duty, and not the duty of plaintiff. On cross-examination he testified that he had been working in mines in the capacity of a shoveler and a driver of cars for 7 years; that he didn't go upon the bluff and push the rock off because it was not his duty, and that he supposed he could have done so if it had been his duty, but Eads, the shift boss, said he would see to it; that he knew Eads had not attended to it, and that he knew the rock might fall, and that notwithstanding this he continued to work, as Eads had told him to go ahead and work there, and he (Eads) would see to it. It appeared from the evidence that some time during the morning the plaintiff requested the drill men to remove the rock, but that they failed to do so. Nothing was done in regard to removing the boulder, and between 12 and 1 o'clock of that day it fell, and struck the plaintiff's leg, causing the injuries for which he sues.

It is first asserted by the defendant that the foregoing evidence is inherently unreasonable and contrary to physical law, and has no evidentiary value, in that a rock or boulder 3 feet square, flat on the bottom, weighing from 1,200 to 1,500 pounds, and...