Reed v. Blue Jay Coal & Mining Co.

• Decision Date: 06 July 1926
• Docket Number: No. 15678.,15678.
• Citation: 287 S.W. 852
• Court: Missouri Court of Appeals
• Parties: REED v. BLUE JAY COAL & MINING CO.

287 S.W. 852

REED v. BLUE JAY COAL & MINING CO.

No. 15678.

Kansas City Court of Appeals. Missouri.

July 6, 1926.

Rehearing Denied July 22, 1926.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Clara Reed against the Blue Jay Coal & Mining Company. From a judgment for plaintiff and an order overruling motion for new trial and motion in arrest, defendant appeals. Affirmed.

Stubbs & Wolfe, of Kansas City, for appellant.

T. W. Silvers and H. E. Sheppard, both of Butler, for respondent.

ARNOLD, J.

This is an action in damages for the death of plaintiff's husband. Defendant is a corporation duly organized and existing under the laws of the state of Missouri, and operates a coal mine near the town of Worland, Bates county, Mo.

The facts shown are that an January 26, 1924, the husband of plaintiff was in the employ of defendant as a coal miner in said mine; that about 9 o'clock in the forenoon of that day part of the roof of the room in which Reed was working fell, and a large stone, measuring about 8 to 10 feet in width and 10 to 12 feet in length, weighing approximately 8 to 10 tons, fell upon Reed and killed him. Reed had been working in the mine for about six months prior to his death. The room in which he was working is described as having a length of about 30 to 40 feet, and being about 3 to 3½ feet high, so that in working there a miner had to be on his hands and knees or in a sitting posture. The face of the vein of coal measured 3 to 3½ feet, No one was working in the room with Reed, and he was alone when the accident happened. After discovery of the accident, it was necessary to raise the rock before the body could be removed.

The negligence charge in the petition Is:

"That while so engaged in the discharge of his duty as a miner in said mine, without negligence on his part, but by reason of the negligence of the defendant as hereinafter mentioned, he was suddenly and instantly killed by the falling down upon him of a large amount of rock, slate, and dirt from the roof of his said room or working place; that it was the duty of the defendant to send to the said George Reed a sufficient number of props and cap pieces, when required, with which to prop the roof of his room or working place to secure him from falling rock, slate, or other dangerous substances; that, while danger from falling roof did not appear imminent to the said George Reed, he had nevertheless ordered and requested props and cap pieces from the defendant, but the defendant failed and refused to furnish them, as required by the statutes of Missouri, and by reason of the failure of the defendant to furnish the props as required the said George Reed was killed as aforesaid, to the damage of the plaintiff in the sum of $10,000."

The statute to which the petition refers is section 7516, R. S. 1919, as follows:

"The owner, agent or operator of any mine shall' keep a sufficient supply of timber, when required to be used as props, so that the workmen may at all times be able to properly secure the said workings from caving in, and it shall be the duty of the owner, agent or operator to send down all such props when required."

Plaintiff's right of action is based upon section 7514, which, in so far as it applies to this case, is as follows:

"For any injury to persons or property occasioned by any violation of this article * * * and in case of loss of life by reason of such violation or failure as aforesaid, a right of action shall accrue to the widow of the person so killed, * * * for a like recovery of damages sustained by reason of such loss of life or lives."

The amended answer admits that the said George Reed was employed in its mine as alleged in the petition, and generally denies all other allegations therein; and —

"further answering, the defendant avers that the said George Reed was killed in his own working place, where it was his duty to look after his own safety, and that the said George Reed had assumed all the risks as to the condition of the roof in said working place, and that, if his death was occasioned by the fall of said rock, the said George Reed was fully aware as to the condition of the same, and that he assumed all the risks incident thereto. Further answering, the defendant avers that at the time of the death of the said George Reed he was working in his room, and under a rock, in violation of the orders of his superiors, and that the said George Reed was an experienced miner, and knew, or by the exercise of diligence on his part could have known, that the roof in his room was unsafe, and that he negligently continued to work in said room, and that his death was occasioned by his own negligence or directly contributing thereto."

The reply is a general denial of each and every allegation in the amended answer, and, in addition thereto, asserts that plaintiffs husband was employed by defendant, and while so employed was killed, as stated in the petition. At the close of plaintiff's case, and again at the "close of all the evidence, defendant asked and the court refused peremptory instructions in the nature of general demurrers, and further asked the following Instruction, which the court refused:

"The court instructs the jury that there is no evidence that the defendant failed to furnish to the deceased such props as were required by the said George Reed, and that issue is withdrawn from your consideration."

The jury returned a verdict for plaintiff in the sum of $7,000, and judgment therefor was accordingly entered. Motions for a new trial and in arrest were overruled, and defendant appeals.

Defendant urges that the verdict is not supported by the evidence, and that the court erred in not sustaining its demurrers to plaintiff's evidence. It is argued that the sole negligence complained of is defendant's failure to furnish props as requested, and that there is no evidence, or satisfactory testimony, that props were not furnished, and that there is no evidence that failure to furnish props was the proximate cause of the death of deceased.

The rule is so well established to the effect that, in the consideration of a demurrer, the evidence of the plaintiff must be accepted as true, and that he is entitled to all reasonable inferences to be drawn therefrom, that citations in support thereof are not necessary. Therefore, in the consideration of this assignment, it is deemed proper to refer briefly to the evidence adduced in behalf of plaintiff, in support of her allegation that no props were furnished Reed.

One witness, Mike Rossani, a miner who worked in the entry about 30 feet from the room in which Reed was working, testified that about two days before the accident he heard Reed order props. Plaintiff's witness T. Audrey, a timber man in the employ of defendant at the time, testified that he heard Reed order props on the day preceding the accident. These witnesses also testified there were no props in the mine at the place where they were usually kept on the occasions of these orders.

It appears in plaintiff's evidence that the rules of the mine required that a coal digger should place his order for props with the driver whose duty it was to pull away his loaded cars of coal and bring empty cars back to the miner; that, when the driver would deliver...