Parks v. Central Coal & Coke Co.

• Decision Date: 29 February 1916
• Docket Number: No. 17498.,17498.
• Citation: 183 S.W. 560
• Court: Missouri Supreme Court
• Parties: PARKS v. CENTRAL COAL & COKE CO.

183 S.W. 560

PARKS v. CENTRAL COAL & COKE CO.

No. 17498.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by John E. Parks against the Central Coal & Coke Company. There was a judgment for defendant, and from an order granting plaintiff's motion for new trial, defendant appeals. Affirmed.

B. R. Dysart and W. C. Goodson, both of Macon, for appellant. Guthrie & Franklin, of Macon, for respondent.

BROWN, C.

This is an action for personal injuries received by the plaintiff, an employé in defendant's coal mine. That part of the petition charging the acts complained of as negligent is as follows:

"Plaintiff further states that on the 4th day of December, 1911, while he was at his place of work, assigned to him by this defendant, and while in the performance of his duty to the defendant, in the exercise of due care on his part, without fault or neglect, he and his assistants or `buddies' had hold of a carload of said coal for the purpose of placing it upon the cage or elevator to be hoisted from said mine, and while in the proper discharge of his duty as an employé of this defendant, the defendant, its agents, servants, and employés, carelessly, negligently, and recklessly permitted a car of coal being moved upon the track of said mine, as aforesaid, to run down the grade of said track from the elevation thereon some 200 feet to the eastward, without spragging and without being controlled, at a reckless, dangerous, negligent, and high rate of speed so as to catch this plaintiff between the car of coal that he and his assistants or `buddies' were placing upon the cage and the car aforesaid, so carelessly, negligently, and recklessly permitted to descend upon him, and thereby mashed, mangled, and injured this plaintiff between said cars."

The answer, in addition to the general denial, pleaded contributory negligence and assumption of risk. He had been employed by defendant in mining about 20 years, and at the time of the accident, it was his work to receive the coal in cars at the foot of the shaft and place the cars upon the cage to be hoisted to the surface, where they were unloaded and sent down to him to be taken off the cage and delivered to other employés, to be taken to the rooms and reloaded. Sometimes the empties were not immediately removed from the track upon which he delivered them, and accumulated in such numbers that they blocked the track, and it was necessary for other employés to remove them from the switch at the entrance of the cage with a mule. At the time of this accident eight or nine empties, each 6 feet long had accumulated at that place, the last of which had not cleared the cage, and a mule was hitched to them, ready to take them out. Two tracks which approached the cage from the east were designated in the evidence the "north" and "south" tracks. The loaded cars came in on the former, while the empties went out on the latter. These tracks were 38 inches apart, and cars standing or running on them were 26 inches apart. They came together at the entrance of the cage. Twenty feet east of the cage was something described as a diamond and a latch. The loads came in on the north track, and the empties were taken out on the south track. These tracks were laid on an upgrade for 150 feet, having a rise in that distance of about 2 feet, so that loads were moved from the top of the grade to the cage by gravity, and the empties were taken up with mules. The coal was mined in rooms to the east, and brought by mules to the top of the incline, where the cars were released and taken charge of by other employés, called "spraggers" and "greasers" and "pushers," who took them down the grade and delivered them to the cagers at a point 20 or 30 feet east of the diamond, controlling their movement by sprags, which were iron rods placed in the wheels to prevent them from turning. It was their duty to deliver them to the cagers "under control." The accident occurred at between 3 and 4 o'clock in the afternoon, which was about quitting time. Two loaded cars were sent down, and the forward one was delivered by Davidson, the pusher, at the place mentioned, and received by the plaintiff and his buddy or helper. It was moving when they took hold of it, and they started. Seeing the empties on the track, they called to the driver to take them out, and undertook to stop their car before running into them, but could not hold it. When they received it, the plaintiff testified that it was moving so fast that they had to run to keep up with it. The plaintiff was on the south side of the car, next to the track on which the empties stood, while his buddy was on the north side. Seeing that they could not stop it and that it must strike the string of empties, and fearing, as he said, that it would knock them from the track against him, the plaintiff jumped to the rear of the car they were handling, and it struck the empties. In the meantime the other loaded car, which had been released and was following closely, struck him, crushing him between the two cars and seriously injured him. Neither of these cars had been spragged as they came down.

Eldon Baldwin, who was the only Baldwin sworn as a witness and was the plaintiff's helper at the time of the accident, testified that if he and plaintiff had known that the mule driver had not gotten the empties in the clear, they could have stopped the car, and if they had been gotten in the clear there would have been no danger whatever, and proceeded as follows:

"Q. And when the car that you had sloughed onto the switch struck them, it was jerked back, was it, by the mule and pulled back? A. Yes, sir. Q. And that is really what caused the trouble, wasn't it? A. Yes, and by the other load running down to the latch, and then when the other load come down — that it what mashed him. Q. The real cause of this injury is the failure of those empty cars to be in the clear and the jerking of those back by the mule? That is what caused this trouble? A. Yes, sir. No; there would have been no trouble if the cars had been up."

He also said:

"It is the duty of the cagers to push the empties in the clear, but sometimes they were blocked there; the mule driver pulls them in the clear."

Three witnesses, including the plaintiff, testified in his behalf, and at the close of his testimony the defendant asked a peremptory instruction, which was refused and exception taken. It introduced no evidence.

Among the instructions given at the request of defendant was No. 7, which is as follows:

"You are further instructed by the court that if you believe and find from the evidence that it was the duty of the cagers to remove the empties out of the way before pushing the loaded cars to the cage, and that the failure of the cagers to move said...