Ridenour v. Wilcox Mines Company

• Citation: 147 S.W. 852,164 Mo.App. 576
• Parties: SELMA RIDENOUR, by Guardian, Respondent, v. WILCOX MINES COMPANY, Appellant
• Decision Date: 06 May 1912
• Court: Missouri Court of Appeals

147 S.W. 852

164 Mo.App. 576

SELMA RIDENOUR, by Guardian, Respondent, v. WILCOX MINES COMPANY, Appellant

Court of Appeals of Missouri, Springfield

May 6, 1912

Motion for Rehearing Overruled June 3, 1912.

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

AFFIRMED.

Judgment affirmed.

J. P McCammon and Bates & Stewart for appellant.

(1) In order to make out a case it is necessary to prove that the alleged acts of negligence caused the injury. Brown v. L. & L. Co., 65 Mo.App. 166; Herke v. Railroad, 141 Mo.App. 617; Warner v. Railroad, 178 Mo. 125; Goranson v. Mfg. Co., 186 Mo. 300; Trigg v. Land and Lumber Co., 187 Mo. 231; Klebe v. Distilling Co., 207 Mo. 480. (2) It is not enough to show that Ridenour's death might have resulted from the acts of negligence. The burden was on respondent to show with reasonable certainty that these acts were the cause of the injury. Stickman v. Bank, 126 Mo.App. 664; Hodges v. Railroad, 135 Mo.App. 683; Lyman v Dale, 136 S.W. 165; Jewel v. Mfg. Co., 143 Mo.App. 210; Warner v. Railroad, 178 Mo. 125. (3) It was more reasonable to infer from the testimony that the rock that killed Ridenour might have been caused to fall out by his failure to start the can straight or by pushing it out of line after it had already started and when there is conjecture as to the cause the court should take the case from the jury. Kelley v. Railroad, 141 Mo.App. 490; Harper v. Terminal Co., 187 Mo. 575. (4) It is competent evidence to show the frequency of cans bumping under conditions shown by appellant to be similar to those existing at the time of the accident, not only before the accident occurred but afterward. It is competent for the purpose of showing the probability of accidents happening. Trigg v. Land and Lumber Co., 187 Mo. 236. (5) The court erred in allowing plaintiff to attack the credibility of defendant's witness, B. F. Plumlee. The credibility of a witness cannot be impeached by specific past delinquencies but only by his general reputation in the neighborhood where he resides. Specific acts of lawlessness or moral turpitude are not admissible for that purpose. State v Phillips, 233 Mo. 305; Wright v. Kansas City, 187 Mo. 693; State v. Gessel, 124 Mo. 533; State v. Rogers, 108 Mo. 204.

D. C. Mallory, Ray Bond, Frank Lee and R. M. Sheppard for respondent.

(1) On appeal the party in whose favor a verdict has been rendered is entitled to the benefit of every reasonable inference of fact which the evidence warrants to support the verdict, and where the verdict is for the plaintiff the evidence should be viewed by the appellate court in its most favorable aspect in support of the verdict. Arnold v. Cason, 95 Mo.App. 426; Cunliff v. Hansman, 97 Mo.App. 467. (2) In determining whether there was any substantial evidence to sustain the verdict for the plaintiff the appellate court should not consider defendant's controverting evidence but should assume that the plaintiff's evidence is true and give it every favorable inference which may be reasonably and fairly drawn from it. Holloway v. Kansas City, 184 Mo. 19; Lackland v. Mining Co., 110 Mo.App. 634; Phillips v. Railroad, 196 Mo. 321; Hurst v. Mining Co., 141 S.W. 471; Hollowell v. Telephone Co., 195 Mo. 165; Phelan v. Paving Co., 115 Mo.App. 423; Morgan v. Mining Co., 141 S.W. 740; Evana v. Railroad, 178 Mo. 508; Eckhard v. Telephone Co., 202 Mo. 345; McKenzie v. Railroad, 216 Mo. 115. (3) The court did not commit error in permitting the plaintiff, upon cross-examination of the witness Plumbley, to ask him certain questions relative to his conduct, and which affected his moral standing and veracity. It is the law of this state that a witness may be asked upon cross-examination such questions as will show his moral standing and for that purpose he may be asked upon cross-examination if he has been convicted of any criminal offenses, or any other question which would tend to impugn his character for morality, veracity, honesty and virtue. O'Conner v. Transit Co., 106 Mo.App. 219; Real v. People, 42 N.Y. 270; Miller v. Association, 5 Mo.App. 401; State v. Forshone, 190 Mo. 326; State v. Long, 201 Mo. 675. (4) The court committed no error in refusing to show the number of cans of ore that had been hoisted from its mine from the time of the accident in question to the date of the trial. The court permitted the defendant to go into that thoroughly, as to any accidents that occurred prior to the trial. It is well settled in this state that negligence cannot be inferred from injury or the accident itself, and that upon the trial of a case where negligence is alleged that evidence of other accidents or injuries occasioned by the same alleged negligence is not competent to establish negligence, the converse is likewise true that the fact that dangerous machinery, appliance or condition has been permitted to exist for a long period of time and no accidents or injuries resulted therefrom would not prove that the master maintaining said machinery or instrumentalities in the condition they were in was not guilty of negligence. Chase v. Railroad, 156 Mo.App. 701; Smart v. Kansas City, 91 Mo.App. 594; Goble v. Kansas City, 148 Mo. 470; Edwards v. Paving Co., 92 Mo.App. 225; Kelley v. Parker-Washington Co., 107 Mo.App. 495; State v. Hodges, 144 Mo. 54; State v. Zorn, 202 Mo. 48; Van Cleave v. Railroad, 124 Mo.App. 232.

OPINION

NIXON, P. J.

This action was brought by R. N. Alexander as guardian of Selma Ridenour, a girl three years of age, for the alleged negligent killing of her father in the defendant's mine. Judgment was rendered in the trial court for the sum of two thousand dollars against the defendant from which it has appealed.

The allegations of negligence in plaintiff's petition upon which recovery was sought are as follows:

"That defendant, wholly disregarding its duty to said Jesse W. Ridenour in that respect, negligently and carelessly permitted the place where said Jesse W. Ridenour worked to become, be and remain in a dangerous and unsafe condition in this, to-wit, that the roof of the underground room or drift in which said Jesse W. Ridenour worked was very high and that said roof at the place where said shaft entered into said room or drift was between seventy-five and one hundred feet above the floor of said room or drift; that the place where said Jesse W. Ridenour stood and had to stand while performing his work was directly beneath the place where said shaft entered said room or drift; that, on account of the great distance from the floor to the roof of said room or drift and on account of there not being any method of guiding said cans while ascending in said drift or room, said cans, loaded with dirt, ore and rocks, were liable to swing back and forth on the end of said cable into said room or drift while ascending and before reaching said shaft at the place where said shaft entered said room or drift; that on account of said cans swinging back and forth, as above described, in said room or drift, said cans were liable to strike the sides of said shaft when they entered into it, jarring said cans and causing the boulders and pieces of rock and ore in said cans to fall down and onto the place where said Jesse W. Ridenour worked and onto said Jesse W. Ridenour; . . . that defendant carelessly and negligently failed to build or cause to be built a box or continuation of said shaft from the place where it entered into the said underground room or drift through the roof of said room or drift to or near to the floor of said drift, so that cans ascending from said room or drift would be guided by said box or continuation of said shaft and render said cans less liable to jar against the sides of said shaft and so that any rocks or boulders falling from said cans would fall straight down and not fall upon said Jesse W. Ridenour; that defendant negligently and carelessly failed to build or cause to be built a shed over the place where said Jesse W. Ridenour worked, so that any rocks and boulders falling from said cans would strike upon said shed and not strike said Jesse W. Ridenour. Plaintiff further states that on or about said second day of June, 1911, while said Jesse W. Ridenour was performing his duties as the servant and employee of the defendant in defendant's said mine, said Jesse W. Ridenour hooked one of said cans onto said cable and said can, loaded with dirt, rock and ore was hoisted upward on the end of said cable by means of said hoisting machine; that, on account of the dangerous and unsafe condition of said place, as above described, when said can entered into said shaft and as it was ascending in said shaft, said can struck against the side of said shaft, jarring said can and causing a large piece of boulder or rock in said can to fall from said can; that on account of the dangerous and unsafe condition of said place, as above described, said large piece of boulder or rock fell down onto, upon and against the head of the said Jesse W. Ridenour, severely injuring him," and causing his death.

The answer was a general denial, coupled with the admission that Jesse W. Ridenour was employed as tub-hooker in defendant's mine and that it was his duty to hook cans as described in plaintiff's petition, and a plea that he assumed the risks of his employment.

The reply was a general denial.

This mine was being operated by means of a vertical shaft through which the ore and dirt and rocks were hoisted by a steam hoister and a steel cable. The shaft was some five feet square. The room or drift in which deceased was working at the time of the accident was bell-shaped, some one hundred and fifty feet square at the bottom, being about sixty-five to one hundred feet in height, that is, from the floor to the roof. A. L. Keller...