Neeley v. Snyder

• Decision Date: 24 March 1917
• Docket Number: No. 1904.,1904.
• Parties: NEELEY v. SNYDER et al.
• Court: Missouri Court of Appeals

193 S.W. 610

NEELEY v. SNYDER et al.

No. 1904.

Springfield Court of Appeals. Missouri.

March 24, 1917.

Rehearing Denied April 12, 1917.

Appeal from Circuit Court, Jasper County; D. E. Blair, Judge.

Action by Bertice Neeley against Nick Snyder and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Frank L. Forlow, of Webb City, for appellants. Owen & Davis, of Joplin, for respondent.

COX, P. J.

Action for damages resulting, as contended by respondent, from injuries received by him while at work as a shoveler in appellants' mine. His contention is that while engaged at his work a rock or dirt fell from the roof or "chimney" in the roof and struck him on the back and severely injured him. A verdict was rendered in favor of plaintiff for $3,750, and defendants appealed. The charge of negligence is:

"That defendants negligently failed and omitted to properly inspect the drifts and side walls of their said mine where plaintiff was working and negligently failed and omitted to construct and maintain in the drift where plaintiff was working suitable protection for their employés to protect them against falling rock and dirt, and negligently failed and omitted to snowshed the place where plaintiff was working on said day or otherwise protect the plaintiff from falling rock and dirt, and negligently failed and omitted to warn plaintiff of the danger of work in their said mine, and negligently failed and omitted to furnish plaintiff with a reasonably safe place in which to work at the time of the accident herein complained of."

The testimony tended to prove that plaintiff was at work in a drift near the bottom of a stope that rose at an angle of about 45 degrees, and on the top of said stope a level section had been prepared for the purpose of catching the stone and dirt that would fall from the soapstone formation in the roof above it, spoken of by the witness as a "chimney." Immediately over the place where respondent was at work, the roof was of a limestone formation and reasonably safe from danger of falling stones, but stones and dirt did fall from the soapstone "chimney" onto the level place at the top of the stope, and, while most of it went off on the other side, yet it also frequently happened that portions of this falling dirt and stone would roll down on the side of the stope where plaintiff worked, and the physical facts in evidence indicate that respondent was struck by a rock or some hard substance falling from the soapstone or "chimney" part of the roof onto the stope and then rolling or bouncing down to where respondent was and striking him.

The first contention of appellants is that a demurrer to the testimony should have been sustained for the reason, as contended, that the evidence fails to show that respondent was injured in the manner charged or that appellants were in any way negligent.

What we have quoted from the petition and our statement as to what the evidence tends to show as to the manner of the accident, we think, must result in disposing of the first contention against appellants.

As to appellants' negligence, there was evidence tending to show that it would have been practical to have protected respondent by sheds or timbering and that none were provided. Appellants seem to have recognized the necessity for some protection and attempted to provide it by blasting off a level place on the top of the stope to catch rocks and dirt that were expected to fall from the soapstone part of the roof over it, but which did not catch and hold all of the dirt and rock which fell upon it, and evidently the rock or dirt which struck respondent came down in that way and, having fallen or bounced off on the side where respondent was at work, rolled or bounced down the stope and struck him.

We think the question of the negligence of appellants was one for the jury.

Instruction No. 1 given on the part of the plaintiff is assailed on the ground that it assumes controverted facts to be true. Said instruction is as follows:

"The court instructs the jury that if they believe and find from the preponderance or greater weight of the evidence in this case that, on or about the 15th day of December, 1915, the plaintiff was employed by the defendants as a shoveler in their mine, and that on said day, and while plaintiff was working for the defendants in one of the drifts of their said mine, a slab, boulder, rock, or dirt fell out of the roof or out of the chimney in said roof and struck the...