Overby v. Mears Mining Co.

• Decision Date: 02 May 1910
• Citation: 144 Mo. App. 363,128 S.W. 813
• Parties: OVERBY v. MEARS MINING CO.<SMALL><SUP>†</SUP></SMALL>
• Court: Missouri Court of Appeals

128 S.W. 813

144 Mo. App. 363

OVERBY v. MEARS MINING CO.^†

Springfield Court of Appeals. Missouri.

May 2, 1910.

Motion to Transfer to Supreme Court Denied June 6, 1910.

1. MASTER AND SERVANT (§ 258) — INJURIES— ACTIONS—ALLEGATIONS OF PETITION—CAUSE OF INJURY.

Allegation of petition in an action for a servant's death by being knocked off a tub upon which he was being hoisted in a mine shaft by swinging against exposed timbers in the shaft that the tub was "likely" to swing under the projecting timbers because of defendant's negligence were sufficient.

2. MASTER AND SERVANT (§ 238)—INJURIES — CONTRIBUTORY NEGLIGENCE—CUSTOMARY MANNER OF WORK.

Where all of the miners in defendant's mine stood on the rim of the tub in riding up the shaft instead of standing down in it, an action for a miner's death by being knocked off the tub by projecting timbers while standing on the rim thereof could not be defeated on the ground that decedent selected the more dangerous way of standing on the tub.

3. MASTER AND SERVANT (§ 238)—INJURIES— CONTRIBUTORY NEGLIGENCE.

Where it was customary for miners in riding up the shaft on a tub to hold the cable with one hand and guide the tub with the other hand, which decedent did, he was not guilty of contributory negligence because he carried a lighted torch in the hand used to guide the tub; that not having prevented him from properly doing so.

4. MASTER AND SERVANT (§ 289)—INJURIES— JURY QUESTION — CONTRIBUTORY NEGLIGENCE.

A miner's knowledge that the timbers of the shaft up which he was riding on a tub when he was knocked off by contact therewith were exposed would not as a matter of law prevent recovery for his death if such condition was not so dangerous as to threaten immediate injury, or if he might have reasonably supposed

that he could safely ascend the shaft by the use of due care.

5. MASTER AND SERVANT (§ 270)—INJURIES— ADMISSION OF EVIDENCE—SUBSEQUENT REPAIRS.

In an action for a miner's death by being knocked off a tub upon which he was being hoisted up a shaft by contact with exposed timbers, where defendant asked witnesses if the shaft had not been continuously used in the same condition after decedent's death without any accident resulting, plaintiff could show that the dangerous obstruction was repaired after the accident.

6. MASTER AND SERVANT (§ 274)—INJURIES— ACTIONS—ADMISSION OF EVIDENCE.

In an action for a miner's death by being knocked off the tub upon which he was being hoisted from the shaft by contact with exposed shaft timbers, in which defendant claimed that decedent was negligent in riding on the rim of the tub, plaintiff could show that it was customary for the miners to ride on the rim of the tub.

7. TRIAL (§ 191) — INSTRUCTIONS — ASSUMPTION OF FACTS.

In an action for a miner's death while being hoisted up a shaft while standing on the rim of a tub by contact with projecting shaft timbers, the court instructed that if decedent was killed while exercising ordinary care, and if the boards on the side of the shaft were torn off, leaving the end of the girders exposed, whereby the shaft was not reasonably safe for employés, which defendant knew or might have known by ordinary care, and the tub was likely to and did swing under the exposed ends of the girders, causing decedent to be thrown therefrom, they should find for plaintiff. Held, that the charge did not assume that the shaft was in a defective condition, but required the jury to so find.

8. MASTER AND SERVANT (§ 291)—INJURIES— ACTION—INSTRUCTIONS.

An instruction in an action for a miner's death by being knocked from the tub on which he was being hoisted from a shaft by contact with exposed shaft timbers, given preliminary to the instruction on the specific facts, that defendant was bound to maintain a reasonably safe shaft, simply stated the employers' common-law duty, and was not objectionable on the ground that it made defendant's liability depend upon the statute when that was not declared on.

9. MASTER AND SERVANT (§ 288)—INJURIES— ACTION—JURY QUESTION.

Where there was some testimony that a lead miner was acquainted with the defective condition of the shaft causing his death, but the testimony also authorized a contrary finding, the question was properly sent to the jury.

10. TRIAL (§ 296)—INSTRUCTIONS.

In an action for a miner's death by being knocked off a tub on which he was being hoisted from the shaft by contact with exposed shaft timbers, instruction No. 2 stated that plaintiff assumed all the dangers incident to his employment, and the third instruction beginning, "You are further instructed in this connection," stated that though decedent knew of the defective condition of the shaft, unless the danger was so obvious and imminent as to threaten immediate injury, such knowledge would not prevent recovery. Held, that the third instruction read as required in connection with the second to which it referred was not reversible error.

11. DEATH (§ 86)—ACTIONS—INSTRUCTIONS— DAMAGES.

An instruction in a wife's action for the death of her husband while in defendant's employ properly authorized the jury to consider what decedent was earning in arriving at the amount of damages to be allowed.

12. TRIAL (§ 252)—INSTRUCTIONS—APPLICABILITY TO EVIDENCE.

Where, in an action for a miner's death by being knocked off the tub upon which he was being hoisted from the shaft by contact with defective shaft timbers, there was no evidence that the tub was not being carefully hoisted, a requested charge that, if decedent's death would not have occurred but for the negligent manner in which the tub was being hoisted, the jury should find for defendant, was properly refused.

13. MASTER AND SERVANT (§ 291)—INJURIES —ACTIONS—INSTRUCTIONS.

Where the evidence showed that the tub upon which miners were hoisted from the shaft was expected to swing somewhat in being hoisted, and that it was customary for the miners to steady it by putting their hands against the shaft timbers, so as to prevent injury by contact of the tub therewith, a requested instruction in an action for a miner's death by being knocked off the tub by contact with exposed timbers that, if the accident would not have happened but for the swinging of the tub, plaintiff could not recover, was properly refused.

14. TRIAL (§ 260)—INSTRUCTIONS—REQUESTS —INSTRUCTIONS ALREADY GIVEN.

A requested instruction submitting contributory negligence in an action for a servant's death was properly refused where the court had previously submitted the question.

15. MASTER AND SERVANT (§ 206)—ASSUMPTION OF RISK—MINING.

Miners assume all the risks incident to the business.

16. MASTER AND SERVANT (§ 286)—INJURIES TO SERVANT — NEGLIGENCE — QUESTION FOR JURY.

Where decedent was injured in a mine shaft by being knocked off a tub on which he was being hoisted by contact with timbers which were exposed by the lacing having been torn off, held, that defendant's negligence was a question for the jury.

17. MASTER AND SERVANT (§ 289)—INJURIES TO SERVANT—JURY QUESTION—CONTRIBUTORY NEGLIGENCE.

The question of contributory negligence was also for the jury.

Appeal from Circuit Court, Dade County; B. G. Thurman, Judge.

Action by Delia Overby against the Mears Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Edgar P. Mann and Edw. J. White, for appellant. James T. Sturgis, for respondent.

GRAY, J.

This is an appeal from a judgment of $6,000 in favor of the plaintiff for the death of her husband, who was killed by falling from a tub while he was being hoisted from the appellant's mine in Newton county, Mo., on July 29, 1907.

The appellant, at the time complained of, was a corporation engaged in mining for lead and zinc in Newton county, and the plaintiff's husband was in its employ. The appellant had two shafts at its mining plant, known as the "Mascot shaft" and the "Homestake shaft." Plaintiff's husband's usual employment was underneath the ground at the Mascot shaft. On the evening of July 29, 1907, he descended the Mascot shaft for the purpose of working therein for the appellant. There was some change made, and the Mascot shaft was not operated that night, and the deceased was directed to work at the Homestake shaft. The two shafts had been connected by an underground drift, so that the deceased passed from the Mascot shaft through this drift to the Homestake shaft, and assumed his duties. The Homestake shaft was about 214 feet deep, and, except for the distance of about 40 feet from the surface, extended through solid rock. The first 40 feet of the shaft had been cribbed. This is done by lining the shaft with lumber or timber laid horizontally, and is for the purpose of holding loose rock or dirt which might otherwise fall to the bottom of the shaft and injure the employés, and also for the purpose of keeping the shaft in proper condition. From the foot of the cribbing to the top of the drift near the bottom of the shaft the shaft had been laced, and this is done by placing girders around the sides of the shaft at a distance of about 10 feet apart, and by nailing boards perpendicularly to these girders, thereby making a smooth inside surface of the shaft, so as to leave no obstruction for the tub or can to hang on while coming from the bottom of the shaft to the surface. In the Homestake shaft, the boards used in lacing were about 20 feet long and a foot wide. Sometime previous to the accident, some of the boards in the first and second tiers from the bottom of the shaft had become loose and fallen off, and some had been removed by the foreman of the defendant.

The evidence was conflicting as to whether the deceased was acquainted with the true situation as to the boards being removed. He had performed but little labor at the Homestake shaft, and the testimony does not show that he had worked at that shaft previous to the night when he was killed, while the shaft was in the condition it was that night. The night shift...