Spiva v. Osage Coal & Mining Co.

• Decision Date: 31 October 1885
• Citation: 88 Mo. 68
• Parties: SPIVA, Appellant, v. THE OSAGE COAL AND MINING COMPANY.
• Court: Missouri Supreme Court

88 Mo. 68

SPIVA, Appellant,

v.THE OSAGE COAL AND MINING COMPANY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Henry Circuit Court.--HON. JAMES B. GANTT, Judge.

AFFIRMED.

M. A. Fyke for appellant.

(1) The court erred in excluding the evidence offered by appellant to show the proper and prudent manner of fencing and protecting the top of the coal shaft. (2) The demurrer to the evidence should not have been sustained, for the evidence clearly showed that the primary cause of the accident was the failure of the defendant to fence and cover, or protect, the top of the shaft as required by the act of the general assembly. Acts of 1881, p. 168, sec. 8; Devlin v. Gallager, 6 Daly, 494; Loewer v. City, etc., 77 Mo. 431; Ry. v. Wyly, 65 Ga. 120. By section six of said mining act it is provided that “any party or person neglecting or refusing to perform the duties required to be performed by sections four, five, six, seven and eight, shall be deemed guilty of a misdemeanor.” So that defendant in this case, in failing to protect the top of its shaft, was guilty of a criminal offence, and is liable in a civil action for all damages arising from such criminal act. Binford v. Johnson, 22 American Law Register, 50; Henry v.Railroad Company, 50 Cal. 176. In Weick v. Landes, 75 Ill. 93, it is said: “Whoever does an unlawful act is to be regarded as the doer of all that follows.” Greenland v. Chaslin, 5 Exch. 243. The mere fact that deceased may have known that the shaft was not protected, would not preclude a recovery, if he fell without any fault or negligence on his part. Loewer v. City of Sedalia, supra; Buesching v. St. Louis Gas Co., 73 Mo. 220; Pennsylvania Co. v. Frana, S. C. Ill., Nov. 17, 1884. The presumption of law is that the deceased was in the exercise of ordinary care, and this presumption is not overthrown by the mere fact of injury. Buesching v. St. Louis Gas Co., supra; Sherman & Redfield on Negligence, sec. 44; Hoyt v. City of Hudson, 46 Wis. 105. There was no evidence showing that deceased was negligent at the time he fell, and nothing from which negligence could be presumed, unless the fact that deceased knew that the top of the shaft was not protected, and could have seen it if he had looked, raises such presumption. Such facts do not raise a conclusive presumption of negligence in him, at all events, and the question of negligence should have been submitted to the jury. Barton v. Railroad Co., 52 Mo. 253; Fernandes v. Railroad Co., 52 Cal. 45.

B. G. Boone and James Carr for respondent.

(1) No cause of action was stated in the petition. It failed to state facts bringing it within the terms of the mining act. Besides there are no facts alleged from which a breach of duty to the deceased can be deduced. Williams v. Hurgham, etc., 4 Pick. 341; Bartlett v. Crozier, 17 John. 456; Welton v. Ry., 34 Mo. 358; Ry. v. Wilson, 31 Ohio, 555. (2) Plaintiff's evidence shows that the negligence of the deceased was the proximate cause of his death, notwithstanding the failure of respondent to securely fence the top of the shaft into which he stepped and fell. Reynolds v. Hinman, 32 Ia. 146. The deceased knew the danger and voluntarily assumed the risk. Powell v. Ry., 76 Mo. 80; Lenix v. Ry., 76 Mo. 86. (3) The court properly sustained the respondent's demurrer to appellant's evidence. Cases last supra.

RAY, J.

This is an action begun by plaintiff against defendant for damages, on account of the death of her husband, Edward L. Spiva, which, as was admitted upon the trial, was caused by an injury received by him in falling down the shaft at defendant's coal mine, said Spiva being at the time in defendant's employ thereat. A demurrer to the evidence was sustained by the trial court, and the propriety of this ruling is the main question before us. The petition charged, among other things, that the cage was lowered to the bottom of the shaft without the knowledge of Spiva, upon the order of defendant's foreman, and contrary to the usual custom of defendant, while Spiva was dumping the coal from the box which had just been taken from the cage, and that, in attempting to put the coal box back onto the cage he stepped into the shaft. It is perhaps sufficient to say of this allegation that there is no evidence that the foreman gave any order whatever, or even that he was present, nor does it show what defendant's customary way of lowering said cage was, or that it was managed or lowered in any different way upon this occasion, through the direction or procurement of defendant or its other servants. The mere fact of his falling down the shaft is the only evidence to show that the cage was lowered to the bottom of the shaft without his knowledge.

The petition, however, is substantially grounded upon “an act providing for the health and safety of persons in coal mines, and providing for the inspection of the same.” See Acts of 1881, p. 168. Section eight thereof, provides that: “The top of each and every shaft and the entrance to each and every immediate working vein shall be securely fenced by gates properly covering and protecting such shaft and entrance thereto.” Section fourteen of same act provides: “For any injury to persons or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; and, in case of loss of life, by reason of such wilful violation, or wilful failure, as aforesaid, a right of action shall accrue to the widow of the person so killed, his lineal heirs, or adopted children.” By section six of said mining act it is provided, that: “Any party or person, neglecting or refusing to perform the duties required to be performed by sections four, five, six, seven and eight, shall be deemed guilty of a misdemeanor.”

The defendant had not complied with the above and foregoing provisions of the statute in regard to gates, and would be clearly liable for any injury occasioned thereby to one coming within its provisions, and in case of death the right of action would accrue under the statute to the widow of the person killed, his lineal heirs or adopted children. The evidence also shows, however, that Spiva was employed to work not in the coal mine, but on top of the ground and at the entrance to the shaft, and that he accepted such employment and remained engaged therein for sixteen months previous to the date of injury, with full knowledge of the condition of things. There were no gates there when he began work. The witness, Richard Bowen, was the pit boss at the time the accident happened, and was mine inspector for Henry county, at the date of the trial. With the exception of the plaintiff, who testified in her own behalf, and whose testimony was solely in relation to the marriage, and health, and earnings...