Snyder v. Media Mining Co.

• Decision Date: 25 November 1918
• Docket Number: No. 2323.,2323.
• Citation: 206 S.W. 593
• Parties: SNYDER v. MEDIA MINING CO.
• Court: Missouri Court of Appeals

206 S.W. 593

SNYDER v. MEDIA MINING CO.

No. 2323.

Springfield Court of Appeals. Missouri.

November 25, 1918.

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Action by IL L. Snyder against the Media Mining Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. E. Spencer, of Joplin, for appellant. W. R. Shuck, of Webb City, for respondent.

FARRINGTON, J.

The plaintiff, respondent, recovered a judgment in the trial court on account of personal injuries received by him, alleged to have been caused by the negligence of the defendant, appellant. The charge in the petition is that the defendant negligently failed to furnish plaintiff a reasonably safe place In which to work, in that the foreman of defendant in charge of the work which plaintiff was doing failed to properly inspect the roof under which plaintiff was working, and negligently ordered plaintiff to set up his post and drill at a certain place where he knew, or by the exercise of ordinary care could have known was an unsafe place; and plaintiff alleges that acting upon the assurance given him by the foreman he obeyed his instructions and received the injuries complained of.

The plaintiff told his story and introduced an additional witness, that being his helper. The defendant offered an instruction in the nature of a demurrer at the close of plaintiff's evidence, which was overruled, and defendant stood on the demurrer and offered no testimony.

The sole question raised here by appellant is that the plaintiff's proof fails to make a case, and that the judgment is based upon the action of the court in overruling its instruction directing a verdict in its favor. This will require an examination of the testimony. As we view the case, there is no evidence to sustain the charge that the defendant knew, or could have known by the exercise of ordinary care, that the place in which plaintiff was put to work by defendant's foreman was unsafe and dangerous. We further think that the undisputed evidence offered by the plaintiff of arty probative value shows that the plaintiff did not rely upon the assurance of defendant's foreman in working where he did, but, on the other hand, his testimony shows that he made a careful inspection for himself, and found nothing that indicated anything should be done to the roof to make it safe.

A summary of the evidence is: Plaintiff was a drillman, operating a drill which was attached to a post some six inches in diameter, except at the top, which was bulged, or larger. This post, together with two jack screws on which it sat, was about nine feet long. The drill was used in making holes in the side of the drift in the mine of defendant, and was operated by plaintiff and his helper. The post is made firm and secure by placing it on top of the jacks, wedging it in at the top with blocks, and screwing the jacks up so as to make the post stand firm when in place at the top by the ceiling of the mine and at the bottom by the tightened jack screws.

Plaintiff testified that he was to drill two holes, one near the top of the drift and one near the bottom, and when he went to set up the pole that the natural place to set it was some eighteen inches to two feet from the face of the drill, but that he did not like the looks of that place, it looked dangerous; and lie and his helper were putting up the post several feet back of the place where It would ordinarily be stationed, when defendant's foreman came along and told him he was not setting it at the light place. The plaintiff's evidence shows that he saw to the foreman, "I know it should be set up closer," but that he was afraid of the roof at that place, and with that the foreman threw his carbide light upon the ceiling— which must have been some nine or ten feet high—and inspected it in that way, and informed the plaintiff that it was all right, and made a mark on the floor with his foot where the jacks and post should he stationed. Plaintiff testified that he moved the post and drill exactly where the foreman told him, and put in the blocks and tightened the post in the usual way, that he drilled there for about two hours, completing the hole near the ground, and that he then raised the drill up on the post and began drilling the hole near the top, when all at once the roof or the place where the post touched the ceiling gave way, permitting the post on which the machine was fixed to creel over, falling on plaintiff and causing him the injuries from which he complains.

Plaintiff in his testimony, while somewhat evasive on the question of the duty of the drillman to inspect the roof, admits that he inspected this roof after the foreman had told him to set the drill at the new place, and that he went up on this post with a two-pound hammer and hammered the roof to see if it was "drummy." He also had his light and made an inspection there to ascertain if there was anything that need be taken down or changed, and he stated that he made this inspection after the foreman had assured him that it was safe, and there was nothing that he saw that need be done or changed. And while he does not admit that it is the duty of the drillman to make this inspection, he does admit that he always made it, and that he made it in this case, and further admits that, had he been able to discover that anything should be done to the roof before placing his machine there, he would have done it.

There is no question in this case of a rock falling on plaintiff, or of the roof giving way anywhere except over the end of the top of the post, which permitted the post to become loose and therefore fall. There is no attempt in this case to show that a dangerous condition was actually known to the foreman, but the respondent relies upon the facts stated by him that he called the foreman's attention to the fact that he thought the place was dangerous, and for that reason had not set the post where it ordinarily would go, and that the foreman merely flashed his carbide light on the ceiling,.and with no further examination told plaintiff that it was all right. This might have made a case for the plaintiff had it not been further shown that the plaintiff admitted he made a minute and careful examination of the place after he received that assurance...