State v. Arnold

• Decision Date: 14 July 1923
• Docket Number: No. 23735.,23735.
• Citation: 254 S.W. 850
• Parties: STATE ex rel. ADAIR COUNTY COAL CO. v. ARNOLD et al., Judges.
• Court: Missouri Supreme Court

254 S.W. 850

STATE ex rel. ADAIR COUNTY COAL CO. v. ARNOLD et al., Judges.

No. 23735.

Supreme Court of Missouri, Division No. 2.

July 14, 1923.

Motion for Rehearing Overruled October 4, 1923.

Certiorari to Kansas City Court of Appeals.

Certiorari by the State, on the relation of the Adair County Coal Company, against Henry L. Arnold and others, Judges of the Kansas City Court of Appeals, to review the judgment of such court in the case of Lou Shoemaker v. Adair Coal Company, 255 S. W. 350. Writ quashed.

Campbell & Ellison, of Kirksville, for petitioner.

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

WHITE, J.

Certiorari to the Kansas City Court of Appeals. In the case of Lon Shoemaker, Appellant, v. Adair Coal Co., Respondent, 255 S. W. 350, on appeal from the circuit court of Adair county, the Kansas City Court of Appeals reversed the judgment and remanded the cause. The relator here, respondent there, complains of the rulings of that court as in conflict with certain decisions of this court. The facts and the issues are thus stated by the Court of Appeals.

"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 z 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 "fan house," 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 fan house. There were wooden steps leading from the floor of the fan house 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 fan house 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."

I. The first complaint of the relator is that no case was made out for the jury, and the Kansas City Court of Appeals should have so held, because the plaintiff, Shoemaker, had complete supervision and control of the "engine and fan house," and made reports to his employer that the same was safe, and at the time of the injury stepped sideways down the steps which were covered with oil. On careful reading of the opinion of the Kansas City Court of Appeals we do not find that the issue was presented so as to require a ruling by that court fiat the case was one for the jury. It was not contended that the judgment should be affirmed because a case was not made out. Nor was any such point made in the relator's motion for rehearing filed in that court, where the case appears to have been treated throughout by both parties as a submissible one. Besides, on this point the relator assumes certain controverted facts. The plaintiff testified that he was inspector for all the machinery about the mines, and made reports for the company on some of it; that he did not make inspection of that particular machinery to determine whether it was safe or not, but only as to its operating condition: that he reported his inspection to the company, and that a record was kept in a book for the benefit and information of the state mining authorities. As the issues were presented to the Court of Appeals, plaintiff's evidence showed he had nothing to do with keeping the steps approaching the engine in safe condition, did not inspect or report on the condition of the steps, had nothing to do with grease which accumulated there, and did not report on the safety of the engine. He inspected it as to its working condition, and his duty was to oil it and keep it in order. His duties, as he stated them, no more required him to render the machine safe or to report whether it required a guard than the duties of any other worker about the engine required such action and report.

Of the cases with which the supposed ruling is said to be in conflict, Coin v. Lounge Co., 222 Mo. loc. cit. 509, 121 S. W. I, 25 L. B. A. (N. S.) 1179, 17 Ann. Cas. 888, is one where it is held that, if two causes, for only one of which the defendant is responsible, led to the injury, the plaintiff must fail in his case. That case is cited on the theory that the plaintiff himself negligently allowed the steps to become greased and reported them safe. Plaintiff's evidence controverted such alleged facts. Nor is it conclusive that stepping down sideways was a negligent way of stepping down; that Was a question for the jury. In the case of Zumault v. Railroad, 176 Mo. loc. cit. 312, 74 S. W. 101E, the plaintiff's own evidence showed conclusively" that he contributed to his own injury. In Huss v. Bakery Co., 210 Mo. loc. cit. 53, 108 S. W. 53, it conclusively appeared that the plaintiff permitted the passageway where he was hurt to become slippery when it was his duty to keen...