Shimmin v. C. & S. Mining Co.

• Decision Date: 17 June 1916
• Docket Number: No. 1729.,1729.
• Citation: Shimmin v. C. & S. Mining Co., 187 S.W. 76 (Mo. App. 1916)
• Court: Missouri Court of Appeals
• Parties: SHIMMIN v. C. & S. MINING CO.

187 S.W. 76

SHIMMIN v. C. & S. MINING CO.

No. 1729.

Springfield Court of Appeals. Missouri.

June 17, 1916.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by John Shimmin against the C. & S. Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. M. Sheppard, of Joplin, and J. P. McCammon, of St. Louis, for appellant. Owen & Davis, of Joplin, for respondent.

STURGIS, J.

Plaintiff sued for and recovered $2,500 damages for injuries received by him in defendant's mine. The plaintiff, when injured, was descending defendant's shaft for the purpose of repairing the pump, and the injury was caused by an accumulation of ice falling on him from near the mouth of the shaft. The injury occurred on Monday morning two days after Christmas, and the weather was quite cold. The shaft was laced with boards so as to form a smooth surface over the cribbing. There is evidence that the ice began forming on these lacing boards, near the surface, on the Saturday previous. We are not sure from the evidence whether the mine was regularly operated on Sunday or not, but the plaintiff was not at work that day. Some of the witnesses said that some ice had fallen down the shaft the day before the accident. The pump was not operated at night, and, there being no heat from the steam pipes in the shaft, a considerable quantity of ice had formed by Monday morning. The plaintiff went to work on that morning and was directed to go down the shaft and fix the pump, which we understand was operated by steam conveyed through pipes descending through this shaft. The plaintiff and three other men were let down by the hoisterman; and, after examining the pump, plaintiff came up to the surface and in 15 or 20 minutes was again being lowered through the shaft. When he was 100 feet or more down in the shaft the ice broke loose from above and fell on him. He says the shaft was full of escaping steam when he went down and up the same so that he could hardly see, and that it was not his duty to inspect or keep the shaft in a safe condition. This duty devolved on the tub hooker and other workmen under the direction of the ground boss.

The evidence shows that the ground boss and tub hooker were in and about the mine and that their attention was specially called to the condition of the shaft and the accumulation of ice there some 20 minutes before it fell, and that the boss then said he would have it removed or knocked down as soon as he got caught up, meaning that he wanted first to get some dirt hoisted and out of the way. The tub hooker and ground boss were then just starting down in the mine and the tub hooker testified that the ice then looked to him like it was rather loose; that the boss told him to knock it down when he "got caught up." The evidence also is that most of the men had been lowered through this shaft while in this condition and that some dirt had been hoisted before this accident occurred.

Whether or not the defendant was bound to anticipate the formation of ice near the surface in this shaft because of the cold weather then prevailing, the evidence shows that the ice began forming two days before this accident, and that the attention of defendant's ground boss and the man whose duty it was to see that the shaft was kept safe was specially called to the apparently dangerous accumulation of ice on the sides of the shaft near the surface, about the time the men commenced work that morning, and some 15 to 20 minutes before this accident occurred. It was certainly a question for the jury to say whether it was negligent to defer removing this apparently dangerous ice, when the only excuse shown was that to stop long enough to do that would delay other work for a short time.

The defendant assigns error in that the petition, while alleging defendant's negligence in this respect and defendant's knowledge, actual or constructive, of the dangerous condition of the shaft, yet that it does not charge that defendant's knowledge of this dangerous condition existed for a sufficient length of time before the accident for defendant to have removed the same by use of ordinary care and diligence. Many cases are cited, and we have no doubt as to it being the law, that actual or constructive knowledge of the defect by the defendant should be alleged as well as shown to have existed for a sufficient length of time to afford a remedy by the use of reasonable care and diligence. Abbott v. Mining Co., 112 Mo. App. 550, 555, 87 S. W. 110; Mueller v. Shoe Co., 109 Mo. App. 506, 84 S. W. 1010; Pavey v. Railroad, 85 Mo. App. 218. No demurrer, however, was asked to the petition. The evidence as to the above facts went in without objection, and the jury were instructed:

"And if the jury further believe from the evidence that defendant knew, or could have known by the exercise of reasonable care and caution, before ordering and directing plaintiff to go down into said mine, that ice had accumulated on the sides of the shaft of said mine, and that it was dangerous (if the jury believe it was dangerous), in time to have had it inspected and trimmed of said ice, before the accident complained of, and that defendant negligently failed and omitted to inspect said shaft and to trim it of said ice, and that its failure to do so was the cause of plaintiff receiving the injuries complained of, if any, then the jury will find the issues for the plaintiff."

Under these circumstances the objection comes too late, and the petition must be held good after verdict. Section 2119, R. S. 1909, reads:

"When a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, * * * impaired, or in any way affected by reason of the following imperfections, omissions, defects, matters, or things, or any of them. * * * Eighth, for the want of any allegation or averment on account of which omission a demurrer could have been maintained; ninth, for omitting any allegation or averment...