Powers v. S. & S. Mining Co.

• Decision Date: 20 July 1928
• Docket Number: No. 4349.,4349.
• Citation: 8 S.W.2d 940
• Court: Missouri Court of Appeals
• Parties: POWERS v. S. & S. MINING CO.

8 S.W.2d 940

POWERS v. S. & S. MINING CO.

No. 4349.

Springfield Court of Appeals. Missouri.

July 20, 1928.

Appeal from Circuit Court, Jasper County, Division 2. Grant Emerson, Judge.

Action by Benjamin Powers against the S. & S. Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Owen & Davis, of Joplin, for appellant.

Norman & Norman and T. C. Tadlock, all of Joplin, for respondent.

COX, P. J.

Action for damages for personal injury. Plaintiff recovered, and defendant appealed.

Plaintiff was employed by defendant to operate a hoisting machine at a mine. The ore and dirt was hoisted in cans and was hauled up some distance above the surface and then stopped and held in place by use of a foot brake while an apron and screen were placed over the mouth of the shaft. When the screen was properly placed the brake would be loosened and the dirt can caught by the man operating the hoister and tilted and emptied. Plaintiff was working at night. Until noon of the day previous, cans holding 750 pounds had been used. At that time, these were changed and cans holding 1,000 pounds put in their place. About 9:30 at night, as plaintiff was operating the hoister, he had hoisted the can up as far as necessary, set and attempted to hold the brake with his foot while he should place the apron and screen over the mouth of the shaft, but the brake failed to hold and the can of dirt came down and caught his hand between the dirt can and the screen and badly injured it.

The petition alleged failure to furnish a safe place to work and safe tools and appliances with which to work. There was evidence tending to show that the brake was out of repair and for that reason was not reasonably safe for handling the cans holding 1,000 pounds of dirt, and that was the only basis on which the evidence would support a verdict for plaintiff. The court gave an instruction for plaintiff which told the jury that it was the duty of defendant to furnish plaintiff a reasonably safe place in which to work and reasonably safe tools and appliances with which to work and to use ordinary care to keep the tools and appliances in proper repair, and then used the following language:

"And in this connection the court instructs you that if you find and believe from the evidence that defendant had on said date changed the size of the cans used in hoisting earth, rock, and boulders from said mine from cans of a capacity of 750 pounds, when loaded, to cans of a...