State v. Ellison, No. 19685.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGraves
Citation195 S.W. 722,270 Mo. 645
PartiesSTATE ex rel. CENTRAL COAL & COKE CO. v. ELLISON et al.
Docket NumberNo. 19685.
Decision Date22 May 1917
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

195 S.W. 723

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...

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177 practice notes
  • Francis v. Terminal Railroad Assn., No. 39573.
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1946
    ...was violated. It is, therefore, (1) broader than the petition, and (2) unwarrantedly assumes controverted facts. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Boland v. St. L.-S.F.R. Co., 284 S.W. 141. (19) Respondent's theory of negligence based upon failure to ring the bell is base......
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...she deemed essential by alleging them very specifically in her petition. Hall v. Coal Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. Charles P. Noell and Hensley, Allen & Marsalek for respondent. (1) The so-called "sectionman rule" o......
  • Propst v. Capital Mut. Assn., No. 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...Hurley, 222 Mo. App. 51, 299 S.W. 604; Summers v. Baker, 158 Mo. App. 666, 139 S.W. 226; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 653, 195 S.W. 722; Degonia v. St. Louis Iron Mtn. & S. Co., 224 Mo. 564, 588, et seq., 123 S.W. 807; Bay v. Wank, 215 Mo. App. 153, 255 S.W......
  • State ex rel. Donelon v. Deuser, No. 36070.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1939
    ...139 S.W. 561; Barth v. K.C. Elevated Ry. Co., 142 Mo. 535; Morgan v. Durfee, 69 Mo. 469; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Secs. 766, 767, R.S. 1929. (2) The court erred in giving and reading to the jury Instruction 1, for the reason that said inst......
  • Request a trial to view additional results
177 cases
  • Francis v. Terminal Railroad Assn., No. 39573.
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1946
    ...was violated. It is, therefore, (1) broader than the petition, and (2) unwarrantedly assumes controverted facts. State ex rel. v. Ellison, 270 Mo. 645, 195 S.W. 722; Boland v. St. L.-S.F.R. Co., 284 S.W. 141. (19) Respondent's theory of negligence based upon failure to ring the bell is base......
  • Koonse v. Mo. Pac. Railroad Co., No. 27609.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1929
    ...she deemed essential by alleging them very specifically in her petition. Hall v. Coal Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. Charles P. Noell and Hensley, Allen & Marsalek for respondent. (1) The so-called "sectionman rule" o......
  • Propst v. Capital Mut. Assn., No. 19141.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...Hurley, 222 Mo. App. 51, 299 S.W. 604; Summers v. Baker, 158 Mo. App. 666, 139 S.W. 226; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 653, 195 S.W. 722; Degonia v. St. Louis Iron Mtn. & S. Co., 224 Mo. 564, 588, et seq., 123 S.W. 807; Bay v. Wank, 215 Mo. App. 153, 255 S.W......
  • State ex rel. Donelon v. Deuser, No. 36070.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1939
    ...139 S.W. 561; Barth v. K.C. Elevated Ry. Co., 142 Mo. 535; Morgan v. Durfee, 69 Mo. 469; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Secs. 766, 767, R.S. 1929. (2) The court erred in giving and reading to the jury Instruction 1, for the reason that said inst......
  • Request a trial to view additional results

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