Rowden v. Schoenherrwalton Mining Company

• Decision Date: 29 March 1909
• Citation: 117 S.W. 695,136 Mo.App. 376
• Parties: J H. ROWDEN, Respondent, v. SCHOENHERRWALTON MINING COMPANY, Appellant
• Court: Kansas Court of Appeals

117 S.W. 695

136 Mo.App. 376

J H. ROWDEN, Respondent, v. SCHOENHERRWALTON MINING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 29, 1909

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

Walden & Andrews and A. L. Berger for appellant.

(1) The demurrer to the evidence of plaintiff should have been sustained. (2) The plaintiff assumed the risks, he knew and appreciated the dangers, he was an experienced miner, the dangers arose from and were incident to, the ordinary conduct of the business. Wire Works v. Morgan, 95 S.W. 531; Wilson v. Railroad (Mich.), 108 N.W. 1021; Jennings v. Railroad (Wash.), 34 P. 937; Knight v. Donnelly, 110 S.W. 687; Saller v. Shoe Co., 109 S.W. 794. (3) When a person, knowing the manner in which a business is conducted, and the conditions under which it is conducted, voluntarily enters the service, or where after entering upon such service he becomes aware of the manner in which the business is conducted and of the conditions under which it is conducted, and after having obtained such knowledge, voluntarily continues in such service, he assumes all the ordinary risk arising from the manner of conducting the business and from the conditions under which the business is conducted. Tuttle v. Railway, 122 U.S. 189; 4 Thompson on Negligence, sec. 4611; 1 Bailey on Personal Injuries, sec. 469; Epperson v. Cable Co., 155 Mo 346, 50 S.W. 795; Roberts v. Telephone Co., 166 Mo 370, 66 S.W. 155; Cothran v. Packing Co., 98 Mo.App 343, 75 S.W. 279; Minnier v. Railway, 167 Mo. 99, 66 S.W. 1072; Beckman v. Brewing Assn., 98 Mo.App. 555, 72 S.W. 710; Klein v. Shoe Co., 91 Mo.App. 102; Hurst v. Railway, 163 Mo. 309, 63 S.W. 695; Stagg v. Tea & Spice Co., 169 Mo. 489, 69 S.W. 391; Harff v. Green, 168 Mo. 308, 67 S.W. 576; Shields v. Railway, 87 Mo.App. 637; Shea v. Railway, 76 Mo.App. 29; Glover v. Nut & Bolt Works, 153 Mo. 327, 55 S.W. 88; Brening v. Medart, 56 Mo.App. 443; Moore v. Mill Co., 55 Mo.App. 491; Steinhauser v. Spraul, 127 Mo. 542, 28 S.W. 620; Halloran v. Foundry Co., 133 Mo. 470, 35 S.W. 260; Junior v. Elec. L. & P. Co., 127 Mo. 83, 29 S.W. 988; Fugler v. Bothe, 117 Mo. 475, 22 S.W. 113; Mathias v. Stockyards Co., 185 Mo. 434, 84 S.W. 66; Kane v. Railway (K. C. Ct. of App.), 87 S.W. 571; Evans v. Lumber Co. (N. H.), 38 A. 1099; Strattner v Electric Co. (Del.), 50 A. 57; Mellott v. Railroad (Ky.), 40 S.W. 696; Stucke v. Railroad (La.), 23 So. 342. (4) The plaintiff can recover only upon proof of the negligence alleged in his petition. Railroad v. Chatman, 124 Ga. 1026, 53 S.E. 692; Barker v. Collins (Del.), 53 A. 686; Jemming v. Railroad (Minn.), 104 N.W. 1079; McCoy v. Railroad (N. C.), 55 S.E. 270; Van Horn v. Transit Co., 198 Mo. 481, 95 S.W. 326; Bohn v. Railroad, 106 Mo. 434, 17 S.W. 780; Steinhauser v. Spraul, 127 Mo. 562, 28 S.W. 620; Blanton v. Dold, 100 Mo. 78, 18 S.W. 1149; Blundell v. Miller Mfg. Co., 88 S.W. 103; Bradley v. Railway, 138 Mo. 302, 39 S.W. 763; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Davis v. Mining Co., 117 F. 122, 54 C. C. A. 636; Browne v. King, 100 F. 561, 40 C. C. A. 545; 20 Am. and Eng. Ency. Law (2 Ed.), 57. (5) The court erred in giving the first instruction to the jury, which was given at the request of plaintiff below. The court below erred in overruling the motions of defendant below in arrest of judgment and for a new trial.

W. R. Schuck and P. E. Gardner for respondent.

(1) The demurrer should not have been sustained. Plaintiff was injured by a slab falling from the roof at a place fifteen or twenty feet from where he had been working. It was the usual and ordinary custom of superintendent or ground boss to inspect and trim the roof after shooting. Doyle v. Trust Co., 140 Mo. 15; O'Mellia v. Railroad, 115 Mo. 205; Bultimaster v. St. Joseph, 70 Mo.App. 69. (2) The plaintiff did not assume risk. Sorder v. Railroad, 100 Mo. 682; Mahengos v. Railroad, 108 Mo. 201; Settle v. Railroad, 127 Mo. 336; Pauk v. Beef Co., 159 Mo. 467; Wendler v. House Furnishing Co., 165 Mo. 527; Curtis v. McNair, 173 Mo. 270; Shore v. Bridge Co., 111 Mo.App. 278; Cole v. Transit Co., 183 Mo. 81; Zellars v. Water & Light Co., 92 Mo.App. 109. (3) The case should have been submitted to the jury. Where the evidence is conflicting or where different inferences may be fairly drawn the question of negligence should be submitted to the jury. Doyle v. Trust Co., 140 Mo. 15; Fulso v. Railroad, 45 Mo.App. 541; Huhn v. Railroad, 92 Mo. 440.

OPINION

JOHNSON, J.

Plaintiff sued for personal damages caused by the negligence of defendant, his employer. The answer is a general denial, pleas of contributory negligence and assumed risk. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 1,000. Defendant appealed.

The principal contention of defendant is that the court erred in not peremptorily instructing the jury to return a verdict for defendant. At the time of the injury, February, 1908, defendant was engaged in the operation of a lead and zinc mine in Jasper county and employed plaintiff to drill holes for blasting. A machine was used for this purpose and plaintiff was assisted in his work by a helper. Plaintiff's duties required him to drill and load the holes and fire the shots. It was customary to work during the day drilling and loading and to explode the charges the last thing in the evening. The workmen left the mine before the explosion occurred and did not return to work until the next morning. This method had been pursued by plaintiff and his helper the day before the injury. They drilled, loaded and fired a number of shots in the drift where they had been directed to work by defendant. The roof of this drift was about seven or eight feet above the floor and the nature of the material was such that the explosions were likely to crack and shatter the roof in a way to make it dangerous for miners to work under it until it had been inspected and trimmed. To trim it properly, it was necessary for a miner to detach with pick or spoon the stones, boulders and slabs that had been loosened by the shots and were likely to fall. When plaintiff and his helper went to work on the morning of the injury, the roof had not been trimmed. In a moment or two after they entered the drift, plaintiff left for some reason, not important, and the helper, observing some loose stones in the roof, began detaching them with a pick. Plaintiff returned to the drift while this was being done and immediately after his return, a large slab, twelve to fifteen feet long, ten to twelve feet wide, and from two to eight inches thick, fell from the roof. Plaintiff, who was under one edge of it, was struck and injured. The following extracts from the evidence deal with the subject of whose duty it was to inspect and trim the roof after the explosions:

From the testimony of plaintiff: "The Court: When you would fire a shot at night as you told Judge Walden, in the morning what was the rule there as to who should see the effect and ascertain the effect and trim down the roof, if anybody? A. The boss or superintendent.

"The Court: The ground boss? A. Yes, sir.

"The Court: Did he do it that morning? A. I couldn't tell you. . . .

"Q. It was your duty to take down anything loosened up over your head by these shots? A. Where I was at work.

"Q. Around where the shots had been fired and where the machines were? A. No, sir; I wasn't supposed to take it down where the shots were.

"Q. Anything you noticed that was loose it was your duty to take down? A. Right over my work it was; not my duty, either, but I did it."

From the testimony of W. Cobble, the helper: "We had been working together; we wasn't together that morning; we went down together; he was up there and went away and came back when the slab fell. Q. Whose duty was it to examine and trim the roof over this place where this boulder fell? A. I couldn't say for certain whose duty it is; it is natural if a man sees anything loose over him he pulls it down. Q. Who looks after the roof in that mine there? A. The superintendent or ground boss I suppose are the natural men to look after it. The Court: Tell what you know about it. Q. Tell who looked after the roof in that mine, if you know. A. I don't know; we all took a hand in it; if there was anything over me I looked after it, but for me knowing who looked after it, I don't know for sure. . . . Q. What were your duties with reference to looking after any part of the roof? A. As I told you awhile ago, if I saw anything loose over me, I pulled it down, but I never went around to examine the roof. Q. Was it your duty to go around to examine the roof? A. I had no orders as to that; never was asked to go around and examine the roof."

From the testimony of another miner: Q. Whose duty was it to look after the roof at this place where this stuff fell from? A. The machine man usually trims where he sets up the machine, but the superintendent gave me orders not to go under anything that looked bad, unless I sent either the ground boss or someone to have them trim it, but so far as knowing whose duty it was to trim this roof, I don't know. . . . Q. That is the general custom when the men go into the ground the machine men, not the shovelers, it is their duty to look and see what is the effect of the shots the night before? A. Yes, sir; they look to see. Q. Each machine man is supposed to look after his own drift? Isn't that the custom? A. I don't know about the trimming; they do the trimming around where they set the machine."

The negligence charged in the petition is that defendant "carelessly and negligently failed to inspect and examine the roof and walls of the drift wherein plaintiff was required to work, in a proper manner and...