Spencer v. Bruner

Decision Date24 June 1907
Citation126 Mo. App. 94,103 S.W. 578
PartiesSPENCER v. BRUNER.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Jasper County; John W. Halliburton, Special Judge.

Action by J. A. Spencer against R. E. Bruner. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. E. Spencer, for appellant. Perkins & Blair, for respondent.

JOHNSON, J.

Action of a servant against his master to recover damages for personal injuries alleged to have been caused by the master's negligence. Judgment was for plaintiff in the sum of $2,375, and the cause is before us on the appeal of defendant.

At the time of the injury, Monday, May 24, 1903, defendant was operating a lead and zinc mine, and plaintiff was employed therein as a shoveler. From the wall of a long drift, which was about 20 feet wide and 25 or 30 feet in its perpendicular dimension, defendant had begun to cut a smaller drift, the roof of which was 16 or 18 feet above the floor of the main drift. On Saturday preceding the injury blasting had been done in the new drift, which had detached a volume of material for shovelers to remove, and had so shaken the roof that it was necessary to guard the laborers employed on the floor against injury from the falling of material which remained attached to the roof, but which was so loosened that it was likely to fall. The method adopted by defendant to remove this danger was to "trim" the roof, which means that workmen were to remove the loosened material with pick and spoon. Plaintiff was one of the men ordered by the foreman to do this work. He objected on account of his inexperience, but was told by the foreman that it could be done in safety, if he would clear the roof ahead of him and not stand, while working, under an uncleared place. Thus assured, plaintiff began work at the entrance to the small drift, and, owing to the height of the ceiling, at first, was compelled to use a ladder, but, as the drift penetrated the wall a short distance (about 14 feet) and the roof and floor rapidly converged, plaintiff, at a distance of perhaps 8 feet from the entrance, could reach the loosened materials with his implements while standing on the floor. While at work on the ladder, he discovered a crack in the roof which appeared to him as an indication of a dangerous condition. He immediately notified the foreman of its presence, and the latter ascended the ladder and inspected the place, after which he directed plaintiff to go on with the work, assuring him that there was no present danger to be anticipated from trimming over that place, and that it would "take a shot" to bring down the slab of material which the crack showed had been somewhat loosened. He further ordered plaintiff and his co-laborers to "put a shot" into that place that evening just before they quit work for the day. Ignorant of the fact that he was threatened by imminent danger, and relying on the superior knowledge of the foreman, plaintiff obeyed the order, trimmed over the area in which the crack appeared and beyond it, to a place where he could work from the stope without using a ladder. While thus engaged, a large slab fell from the place where plaintiff feared it would fall, and he was injured by being struck by some of the falling material. It appears that the roof of the small drift was in what miners term "soft ground." It was composed of soapstone and selvage, or decomposed rock. When exposed to the air soapstone rapidly hardens, and becomes very brittle, and, during the process of this change, is likely to crack and slough off. Witnesses for plaintiff say that the usual method followed in instances of the character described is to support the roof by timbers, while those for defendant state that it is not usual to install such artificial supports until after the roof has been trimmed, and that, in the present case, owing to the condition of the stope and to the necessity for further blasting in extending the drift, timbers would have been displaced by explosions, and therefore it was impractical to use them. It is denied by the witnesses for defendant that a crack existed in the roof, that the foreman was notified by plaintiff of the existence of such defect, or that he gave plaintiff the assurance of safety in the place, on which the latter claims to have relied. It is the theory of defendant that plaintiff failed to heed the admonition to work ahead of him, but incautiously stood under material which he pulled down on himself. The foreman admits he knew plaintiff was inexperienced in the work of trimming; but insists that he would have escaped injury had he followed the directions given him.

The issues of fact presented by the pleadings and submitted to the jury are thus defined in the first instruction given at the request of plaintiff: "If you find and believe from the evidence in this case that on the ___ day of May, 1903, the defendant, R. E. Bruner, with other persons was engaged in mining for lead and zinc in Jasper county, Mo., under the name of the B. & H. Mining Company, and that on said day the plaintiff was employed by said company to work in its said mine, then it was defendant's duty to use ordinary care to furnish plaintiff a reasonably...

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    • United States
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    • 6 Abril 1936
    ... ... 602; Ridenour v ... Mines Company, 164 Mo.App. 576; Obermeyer v ... Manufacturing Company, 120 Mo.App. 59; Spencer v ... Bruner, 126 Mo.App. 94; Bowen v. Lumber Company ... (Col.), 84 P. 1010; Bridge Company v. Steel ... Company, 226 F. 169; Rice v ... ...
  • Cody v. Lusk
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    ... ... S.W. 813.] It would be competent to prove that defendants ... adopted a [187 Mo.App. 341] method "less safe" than ... the usual one ( Spencer v. Bruner, 126 Mo.App. 94, ... 102, 103 S.W. 578), though the less safe method must be one ... not reasonably safe. Negligence, however, is not ... ...
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    ...445; Pulley v. Standard Oil Co., 136 Mo. App. 172, 116 S. W. 430; Meily v. Railroad Co., 215 Mo. 590, 114 S. W. 611; Spencer v. Bruner, 126 Mo. App. 94, 103 S. W. 578; Brands v. Car Co., 213 Mo. 698, 112 S. W. 511, 18 L. R. A. (N. S.) 701; Combs v. Construction Co., 205 Mo. 367, 104 S. W. 7......
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