Sparkman v. Jacksonville Coal Co.

• Decision Date: 21 May 1923
• Docket Number: No. 14688.,14688.
• Citation: 251 S.W. 738
• Parties: SPARKMAN v. JACKSONVILLE COAL CO.
• Court: Missouri Court of Appeals

251 S.W. 738

SPARKMAN v. JACKSONVILLE COAL CO.

No. 14688.

Kansas City Court of Appeals, Missouri.

May 21, 1923.

Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.

"Not to be officially published."

Action by William Sparkman against the Jacksonville Coal Company. From judgment for plaintiff, defendant appeals. Affirmed.

A. H. Hammett and Hulen & Walden, all of Moberly, and Martin B. Lawson, of Liberty, for appellant.

Walter C. Goodson, of Macon, and Hunter & Chamier, of Moberly, for respondent.

TRIMBLE, P. J.

Plaintiff, a miner engaged in digging coal at defendant's mine, was injured by the fall of a rock upon him from the roof of his room. He instituted this action based upon a failure to furnish props when requested, as required by section 7516, R. S. 1919. Said section provides that the owner, agent, or operator of any mine shall keep a sufficient supply of timber, when required, to be used as props, so that the workmen may at all times be able to properly secure the said workings from caving in, "and it shall be the duty of the owner, agent or operator to send down all such props when required." Upon a trial of the case the jury awarded him a verdict of $4,000, which the trial court, by an enforced remittitur, cut down to $2,500 before overruling defendant's motion for a new trial. The defendant has appealed.

About 8 o'clock in the morning of October 11, 1921, which was Tuesday, plaintiff began digging a hole in the floor at a certain point in his room preparatory to setting a prop there to support a rock in the roof which plaintiff thought needed propping. The evidence offered in his behalf amply tends to show that on Saturday the 8th, on Monday the 10th, and again as he entered the mine on the morning of the 11th, he had requested props to be sent down to him; that none were delivered in response to his request for props made on the two former days, but he was every minute expecting props to be sent down in response to his request made that morning and began preparations to use them. He had been in his room about 45 minutes when a large rock, several Inches thick and about eight feet square, fell upon him, which crushed him face downward into the coal lying on the floor, breaking his nose, injuring his head, back, chest, ribs, and side. He was confined to his bed for two weeks and for a time after that to the house. The injury to his nose has affected his breathing, his hearing has been affected, and his other injuries have greatly injured and reduced his capacity to work. He was at the time of his injury an active, vigorous workman, earning from $100 to $150 per month. The evidence tends to show that the coal piled upon the floor in some measure kept the full weight of the rock off his head and shoulders else he would have been fatally crushed.

The evidence is that while the plaintiff suspected the rock of being loose and there was need of its being propped, yet he examined his room every morning upon entering it, and prior to beginning work on the day in question, he had examined the rock and thought it was firm enough to hold and not fall. While there is some evidence that 20 minutes before it fell there was some discussion between plaintiff and another miner as to the liability of the rock to fall, yet we cannot say that conclusively the rock was patently unsafe and that no reasonable man would have undertaken to prepare a place underneath it in which to place a prop. Defendant's contention, therefore, that plaintiff was conclusively guilty of contributory negligence, cannot be upheld, and a request for props, together with a failure thereafter to furnish same and an injury occurring to a miner by reason of the absence of props, creates liability. Adams v. Kansas, etc., Coal Co., 85 Mo. App. 486; McDaniels v. Royle Mining Co., 110 Mo. App. 706, 85 S. W. 679; Runyan v. Marceline Coal & Mining Co., 186 Mo. App. 707, 172 S. W. 1165.

Upon a demurrer to the evidence, we must accept as true plaintiff's evidence that he requested props and that none were furnished and none were there available for his use. And plaintiff must be given the benefit of every inference which can reasonably be drawn from the evidence. Consequently, we must accept as true the evidence in plaintiff's behalf that on three different occasions, he ordered props sent down, but none were delivered, and there were no props there.

Defendant did not have any testimony affirmatively stating that props were there at the time of the injury, but did offer to prove by a witness Brown that along in the afternoon of the day plaintiff was hurt and just before the mine shut down, possibly about 2:30 or 3 o'clock in the afternoon, he went into the plaintiff's room and saw one prop; "it was lying back, as well as I remember, in this shape (indic...