Shoemaker v. Adair County Coal Co.

• Decision Date: 01 May 1922
• Docket Number: No. 14312.,14312.
• Parties: SHOEMAKER v. ADAIR COUNTY COAL CO.
• Court: Missouri Court of Appeals

255 S.W. 350

SHOEMAKER v. ADAIR COUNTY COAL CO.

No. 14312.

Kansas City Court of Appeals, Missouri.

May 1, 1922.

Certiorari Denied by supreme Court October 26, 1923.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

"Not to be officially published."

Action by Lon Shoemaker against the Adair County Coal Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

C. E. Murrell and J. D. Rieger, both of Kirksville, for appellant.

Campbell & Ellison, of Kirksville, for respondent.

ARNOLD, J.

This is an action to recover damages for personal injuries alleged to have been received by plaintiff while in the line of his duties as stationary engineer in the employment of defendant, a corporation operating a coal mine in Adair county, Mo., and known as mine No. 22, situated near Novinger in said county.

In connection with said mine and detached from the other buildings of the company was a small building commonly called a "fanhouse," in which was located an engine, the sole use of which was to operate a fan in forcing air down into the mine to supply with air the men working therein.

The engine was of the ordinary type, and was set upon a concrete platform about 25 inches above the floor of the fanhouse. There were wooden steps leading from the floor of the fanhouse up to the floor of the concrete platform at each end thereof. In order to start, or stop, the engine, or to oil the same, it was necessary for the party performing such duties to ascend the steps to the floor of the concrete platform upon which the engine rested.

The testimony of plaintiff shows that besides his duties in operating the hoisting engine and other machinery, he was required also to inspect and care for this fan engine, and to oil it and otherwise keep it in good running order, and to report to the superintendent of the mine its condition. Among the parts of the engine was a piston joined to a crosshead; this crosshead moved back and forth with the movements of the piston and into, or through, an upright guide attached to the cylinder.

On July 26, 1920, plaintiff discovered that there was a knock in the engine, which he. proceeded to eliminate, and in order to do so it was necessary to stop the engine. Adjustments were made, and the engine was started very slowly; but it was discovered that the effort to eliminate the knock was not entirely successful, and it again became necessary to shut off the engine. For this purpose plaintiff started to descend the steps leading down the concrete platform, and in so doing he stepped sideways, his foot slipped from one of the aforesaid steps which was covered with oil, and he fell toward the engine, catching his right hand between the crosshead and guide, above mentioned, and sustaining severe and painful injuries thereto.

The cause is based upon the provisions of section 6786, R. S. 1919, which relates to the guarding of machinery that might be dangerous to those who may be engaged in their ordinary duties near the same.

The petition charges that defendant negligently failed to furnish plaintiff a safe place in which to work, in that defendant failed and neglected to construct the steps leading from the floor of the fanhouse to the concrete base with uniform rise, and failed and neglected to place a guard along the moving parts of said engine, and to safely guard the crosshead above mentioned.

The answer of defendant admits its corporate existence, and as to all other matters pleads a general denial, followed by pleas of assumption of risk and contributory negligence. The reply was a general denial. In this state of the pleadings, the cause was tried to a jury, resulting in a verdict and judgment for defendant. The court overruled the motion for a new trial, and the case is before us on plaintiff's appeal.

Plaintiff's first contention, as set Out in his points and authorities, is that section 6786, R. S. 1919, relates to the guarding of machinery, and declares:

"That the statute was passed for the protection of life and limb, hence it should be liberally construed, in order to carry out its express intent."

Defendant does not deny this plain statement of the obvious purpose of the statute, and, as it is only a declaration of fact, we need not consider it further.

For his next point plaintiff urges there is no assumption of risk under this statute, and that it was therefore error for the trial court to permit defendant to introduce evidence on that question. There was a plea of assumption of risk in defendant's answer, and no motion to strike out was filed; but the instructions of the court submitted no such issue. There was evidence of assumption of risk admitted over the objections of plaintiff, but the objection did not give the correct reason therefor, and hence it was not error to overrule such objection.

The third assignment of error is that the admission in evidence, over plaintiff's objections, of records of inspection made by plaintiff of the hoisting machinery, ropes, cages, drum brake, and shieve wheels, was error. On cross-examination plaintiff testified:

"I have been inspector for most all of the machinery about the mine. I have been inspector ever since I have been there, and I inspect the machinery to see whether it is safe. On certain parts of the machinery I make a report to the company, but I don't on all the machinery. On some of the machinery I may have reported to the company.

"Q. And didn't your examination and your report include the very engine or machine on which you were hurt, your inspection and examination of the machinery?"

This was objected to by p...