State v. Ellison

• Decision Date: 22 May 1917
• Docket Number: No. 19685.,19685.
• Citation: 195 S.W. 722,270 Mo. 645
• Parties: STATE ex rel. CENTRAL COAL & COKE CO. v. ELLISON et al.
• Court: Missouri Supreme Court

195 S.W. 722

270 Mo. 645

STATE ex rel. CENTRAL COAL & COKE CO. v. ELLISON et al.

No. 19685.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Certiorari by the State of Missouri, on the relation of the Central Coal & Coke Company, against James Ellison and others, Judges of the Kansas City Court of Appeals, and another, to bring up the record in the case of Catherine Goode against the Central Coal & Coke Company, in which judgment for plaintiff was affirmed by said Court of Appeals (186 S. W. 1122). Record of Court of Appeals quashed.

B. R. Dysart and W. C. Goodson, both of Macon, for relator. Dan R. Hughes, of Macon, and Burns, Burns & Burns, of Brookfield, for respondents.

GRAVES, C. J.

Certiorari to the Kansas City Court of Appeals, directing that said court certify up its record in the case of Catherine Goode, Respondent, v. Central Coal & Coke Company, Appellant. The case has experienced a rather checkered career. The judgment now certified to us by the Court of Appeals is the third judgment entered therein by that court. When the case was first there (167 Mo. App. 169, 151 S. W. 508) a judgment for plaintiff was reversed for errors in instructions. So, too, when there the second time (179 Mo. App. 207, 166 S. W. 844) it was likewise reversed for errors in instructions. By the present (third) judgment, the plaintiff is sustained in a recovery of $6,000 for the alleged negligent killing of her husband whilst working as a coal miner for defendant in one of its mines in Macon county. The record is somewhat broadened because the opinion before us refers specifically to the two previous opinions for the facts. We have, therefore (by this reference in the last opinion), not only the three opinions of the Court of Appeals, but likewise such records and evidence as are incorporated therein, either by reference or by direct quotation. Under these circumstances, it would be indeed singular if the complete record in the Court of Appeals was not before us through their several opinions. From them all we gather the facts thus: Plaintiff's husband was killed in one of defendant's coal mines in Macon county, Mo. She, conceiving that the negligence of the defendant occasioned his death, brought suit for $10,000 damages. The petition charges: (1) That it was the duty of defendant to exercise reasonable care to keep its shafts, entries, and drifts in a reasonably safe condition. (2) The petition then proceeds in this manner:

"Plaintiff further states that said mine No. 61 is a large mine, at which defendant employs a large number of men; that on the said 27th day of March, 1911, the defendant and its officers and agents ordered and directed the said James V. Goode to go through one of the main entries of said mine No. 61 known as the third south entry off the sixth west entry, being an entry running north and south in said mine, and at the east side of said entry engage in taking out coal by what is known as pulling pillars; that the said James V. Goode, deceased, did go to said point and did work as so ordered; that the said point, where defendant and its officers and agents so directed James V. Goode to work and where he did work as aforesaid, was a great distance from the shaft or place of entrance to said mine, and for economy of time it was necessary for the deceased, James V. Goode, to take his noon lunch with him into said mine.

"Plaintiff further states that the defendant and its officers and agents carelessly and negligently permitted and suffered the roof of said entry in said mine in which the said James V. Goode was ordered and directed to work, and at a point from 15 to 25 feet north of the working place of the said James V. Goode, on said March 27, 1911, to be and remain dangerous and unsafe, and then and for some time prior thereto carelessly and negligently failed and neglected to prop, brace, or otherwise support or protect the roof of said entry at a point from 15 to 25 feet north of the working place of the said deceased, James V. Goode, and at a place in said entry where it was the duty of the defendant to use reasonable care to keep the same in a reasonably safe condition. The roof of said main entry was composed of fragile and breakable rock, slate, and dirt, and was on March 27, 1911, and for some time prior thereto had been, loose, unsafe, and dangerous; all of which the defendant and its officers and agents well knew, or by the exercise of ordinary care could have known.

"Plaintiff further states that on the 27th day of March, 1911, at about 12 o'clock, noon, the deceased, James V. Goode, while engaged as a coal miner as aforesaid and while in the exercise of due care and caution and without fault or want of care on his part, `stepped from the point' at his working place about the east side of said main entry to a point from 15 to 25 feet north of his working place in said main entry in said mine No. 61, where it was the duty of the defendant to use reasonable care and diligence to keep the roof thereof in a reasonably safe condition, for the purpose of eating his lunch, and, while so engaged, a large slab of rock fell from the east side of the roof of said main entry westward down to and upon the deceased, James V. Goode, thereby crushing, mangling, injuring, and cutting off the top of his head, from which crushing, mangling, and injuring the said James V. Goode then and there instantly died.

"Plaintiff further states that the death of the said James V. Goode was caused, occasioned, and brought about by reason of the carelessness and negligence of the defendant and its officers and agents in so carelessly and negligently failing and neglecting to use reasonable care and diligence to make the roof of said main entry in said mine No. 61 reasonably safe at and about the point where the deceased, James V. Goode, was killed as aforesaid, when the defendant through its officers and agents knew, or by the exercise of ordinary care and diligence could have known, that the roof of said main entry at said point and away from the working place of the said deceased, James V. Goode, was ordered to work, was dangerous and unsafe as aforesaid."

The answer consisted of: (1) A general denial; (2) plea of contributory negligence; and (3) a plea of assumption of risk. The petition for certiorari charges several conflicts between the opinion of the Court of Appeals and opinions of this court, which, in connection with this general outline, will be noted in the course of the opinion.

I. It is clear that the petition charges that the place of plaintiff's husband's injury was in an entry way 15 to 25 feet north of the place where the plaintiff was working. Plaintiff's husband was engaged in a work somewhat different to ordinary mining. In other words, he was not working in a room "drifted" out from an entry, but was in fact depleting a mine. His business was to remove the roof supports, or pillars of coal, that had been left when the rooms of the mine were "turned." His petition so shows, and the recited facts in the opinions so show. According to his petition, he was directed to remove these "pillars" of coal, and thus close that portion of the mine from further mining operation. Under the well-established mining law of the state, it is the duty of the miner to keep his working place safe, and the duty of the master to keep the entries (the places generally used by many miners) in a condition of reasonable safety. The petition in this case is on the theory that the plaintiff was placed to work at a given place, and that at a point (in an entry) 15 to 25 feet north of his working place (a place where he had to look after his own safety) the master had negligently and knowingly permitted a bad roof to remain. The petition does not charge that the roof of this entry was dangerous at any other place, although it is shown that the working place and necessarily this entry was about a mile from the shaft, or place of exit. Presumably, from the facts indicated, the entry was one of some length, and not only so, but there were others in the immediate community. Under these facts and this kind of a petition, the trial court instructed thus:

"The court instructs the jury that if you believe and find from the evidence that the defendant was on the 27th day of March, 1911, a coal mining corporation, operating a coal mine known as mine No. 61, near Ardmore, Macon county, Mo.; that James V. Goode was in the employ of the defendant, engaged as a common laborer in digging coal for defendant; that prior to and on the 27th day of March, 1911, James V. Goode was the husband of plaintiff, Catherine Goode, that on said 27th day of March, 1911, said James V. Goode was working for the defendant in its said mine No. 61, and was in the exercise of reasonable care and caution for his own safety on his part; that a large slab of rock fell from the side and roof of one of the main entries of defendant's said mine and at a point away from his working place onto the said James V. Goode and instantly killed him; that...