Rogers v. Rundell
| Citation | 106 S.W. 1096,128 Mo.App. 10 |
| Parties | NELLIE ROGERS, Respondent, v. M. W. RUNDELL et al., Appellants |
| Decision Date | 06 January 1908 |
| Court | Court of Appeals of Kansas |
Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.
AFFIRMED.
Cause affirmed.
F. L Farlow and A. E. Spencer for appellants.
(1) Exclusion of plaintiff's evidence was error. Mason v Mining Co., 82 Mo.App. 367; Jones v. Lumber Co., 58 Ark. 125, 23 S.W. 679; Jackson v Hardin, 83 Mo. 175; Schlicker v. Gordon, 19 Mo.App. 479. (2) Admission of defendant's evidence was error. Hill v. Sturgeon, 28 Mo. 323; Monahan v Co., 58 Mo.App. 68; Benjamin v. Co., 50 Mo.App. 602; Line v. Mason, 67 Mo.App. 279; Hogan v. Co., 150 Mo. 36; Buckalew v. Railroad, 107 Mo.App. 586; Greenwell v. Crow, 73 Mo. 639. (3) Instruction numbered 5 was a proper declaration of law of this case. Deceased was an experienced miner and had helped cut and timber this drift. He knew the entire situation. Sinberg v. Falk Co., 98 Mo.App. 546; Bradley v. Railway Co., 138 Mo. 293; Winkler v. Co., 137 Mo. 394; Hurst v. Railroad, 163 Mo. 309. (4) Instruction numbered ten was also properly given, under the evidence in this case. Deceased knew the situation and the dangers thereof. The instruction was proper under the evidence. Lacey v. Oil Co., 129 Mo. 32; Bradley v. Railroad, 138 Mo. 293; Hurst v. Railroad, 163 Mo. 309; Fuglor v. Bothi, 117 Mo. 475; Minnier v. Railroad, 167 Mo. 99. It was not necessary to plead assumed risk. Dakan v. Co., 197 Mo. 238. (5) The court erred in refusing to direct the jury to find for defendants.
W. C. Irwin, W. J. Owen and Thomas & Hackney for respondent.
(1) The court erred on the trial of the cause in refusing to permit the witness Moon to answer. The witness was shown to be a miner of sixteen years' experience and it was a proper matter for expert testimony. Combs v. Roundtree Const. Co., 104 S.W. 77; Buckley v. Kansas City, 95 Mo.App. 189; Benjamin v. Railroad, 133 Mo. 288; Spencer v. Bruner, 103 S.W. 578. (3) The court committed error in the trial of the cause in permitting the question propounded to Norris Ashcraft by counsel for the defendants. Hurst v. Railroad, 163 Mo. 321. (4) The court committed error on the trial of the cause in giving instructions asked by the defendants and given by the court and especially in giving instruction numbered 10. Graci v. Hill O'Meara Const. Co., 102 S.W. 594; Hester v. Packing Co., 95 Mo. 23; Hun v. Railroad, 92 Mo. 440; Devlin v. Railroad, 87 Mo. 545; Thorp v. Railroad, 89 Mo. 650; Soeden v. Railroad, 100 Mo. 673; Cole v. Railroad, 183 Mo. 94; Daken v. Chase & Son Merc. Co., 197 Mo. 267. (5) The defendants' answer being a general denial only, neither the issue of contributory negligence nor assumed risk was in the case and it would have been error to have given a proper instruction.
--The cause was tried before a jury and a verdict rendered in favor of the defendants, which upon motion of plaintiff was set aside. From the action of the court in setting aside the verdict the defendants appealed.
The suit is against the defendant for damages in the sum of $ 4,500, which plaintiff claims was the result of defendants' negligence, which caused the death of her husband Charles M. Rogers, a miner. The negligence alleged was, generally, in failing to properly cut and construct timbers or otherwise protect the drift from caving; in cutting the drift too wide and too high; in failing to furnish sufficient timbers and of sufficient size and quality to render the drift reasonably safe; in failing to properly place and secure said timbers so as to prevent their falling or being knocked down, and in suffering a large boulder to remain in the roof of the drift. The answer was a general denial.
The grounds upon which the court granted a new trial were as follows, that the court erred in giving improper instructions asked by defendants in refusing competent relevant evidence offered by the plaintiff, and in admitting incompetent and irrelevant evidence offered by the defendant.
The plaintiff introduced evidence, that at the time of the killing of her husband he was in the employ of the defendant, in defendant's mine in a drift from 160 to 170 feet from the surface of the ground; that this drift was eighty feet long from the shaft, and that it was thirty-four feet wide and about twenty-five feet high; that it was in, what was called bouldry selvage ground, which was treacherous and was liable to fall from the effects of the air dissolving and loosening it. There was evidence, that the place where plaintiff's husband was killed and where the cave of the roof occurred, and on the left-hand side of the drift, were two old drifts, which ran into the main drift six feet from the bottom thereof and extended as high as the roof of the same; that the defendants failed to put in supports of the roof in said drifts and failed to shore up the left side of the drift and failed to take necessary precaution to prevent the dirt from falling from the roof of the two old drifts; that before the timbering was done in the drift, there was a boulder in the roof that hung down below the place where the timbering should go and that defendant's foreman instead of removing the boulder popped it off, that is to say in mining parlance shot off the hanging part, and that it was then discovered that the boulder was in selvage ground, and this boulder was uncovered and showed a surface of several feet.
There was evidence, that the posts used by defendants in timbering the shaft were placed as far apart as eight feet and in some places further, and in one place the posts were fourteen feet apart; and that in some instances these posts were of no greater diameter than seven or eight inches at the smallest part. It was in evidence, that in mining, collar braces were used to keep the post from spreading or coming together, but that at the point where the final brake came that killed plaintiff's husband, no collar braces had been placed; and that the posts were not staid at that point. The evidence tended to show, that the weight of the timbers unless they were braced would have a tendency to spread; and that on the day before the killing of plaintiff's husband while the miners were at work that they heard a rumbling in the roof; that loose dirt and other substances were caving down on the left side of the drift and on the left side of the timbers.
We have stated some of the main evidence of the case and it is sufficient to say that plaintiff's evidence tended to support the allegation of her petition. It was disclosed that plaintiff was a miner of many years experience, who had been working in the drift where the accident occurred, and that he had helped to cut the timber in the drift and that he knew all that could be known about its condition. The evidence of the defendant tended to show that the roof, where it fell was apparently a lime roof which would stand without timbers but notwithstanding they timbered the same in the usual way; that the drift was considered safe and that its dangerous condition was not discovered before the accident and that the boulders fell suddenly and without warning.
It has been stated that the court set aside the verdict in favor of the defendant on the grounds of error in giving instruction in their behalf. Instruction numbered 10 given for defendants is attacked by plaintiff as being erroneous and as such a sufficient justification of the court in setting aside the verdict and granting a new trial. This instruction is as follows:
No. 10. "If you believe from the evidence that Charles Rogers knew the width and height of the drift in which he was injured, and the character and condition of the ground in which it was cut, so far as said character and condition was reasonably ascertainable and knew the way in which the timbering was done and the risks and danger incident to working and mining therein under all said conditions, and continued to work therein without complaint, then as a matter of law he assumed the risk of the dangers thus known and of injuries caused thereby, and your verdict must be for defendants."
In Dakan v. Chase & Son Mercantile Co., 197 Mo. 238, 94 S.W. 944, the court in speaking of a similar case uses the following language: "If the peril of the servant in the performance of his duty is increased by the negligence of the master, and if the servant, knowing that the master has been thus negligent and that, that negligence has rendered the performance of his duty more hazardous, continues in the performance of that duty a question of contributory negligence then arises not a question of assumption...
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