Stroud v. Doe Run Lead Co.

• Decision Date: 05 May 1925
• Docket Number: No. 18699.,18699.
• Parties: STROUD v. DOE RUN LEAD CO.
• Court: Missouri Court of Appeals

272 S.W. 1080

STROUD v. DOE RUN LEAD CO.

No. 18699.

St. Louis Court of Appeals. Missouri.

May 5, 1925.

Rehearing Denied June 24, 1925.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Harry B. Stroud against the Doe Run Lead Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

W. E. Bennick and C. J. Stanton, both of Bonne Terre, for appellant.

Brookshire & Kinder, of Farmington, and Curlee & Hay, of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries, sustained by plaintiff while working underground in defendant's lead mine in St. Francois county, Mo. At the time plaintiff was injured, he and another man were pushing a one-ton truck of rock, containing lead ore, over a small underground track in defendant's mine.

The petition alleges that defendant ordered and required plaintiff to push the car on the track, and in so doing negligently failed to furnish plaintiff sufficient help and assistance to enable plaintiff to do said work in a reasonably safe manner, and negligently failed to provide reasonably safe agencies with which to do said work, in that the rails and ties of said track were not level and were uneven; that, as a result of such negligence, the car being pushed by plaintiff was obstructed, and caused plaintiff to throw himself against the car with great force, and his feet to slip, and also caused plaintiff to overexert himself and fall, and sustain a rupture or hernia on both sides of the abdomen.

The answer was a general denial, with a plea of contributory negligence and assumption of risk. The reply was a general denial. There was a verdict and judgment for plaintiff for $2,500, and defendant appeals.

Plaintiff had worked for the defendant company about 18 months before he was injured. At the time he was injured, he was employed as an underground shoveler. In the defendant's mines were railroad tracks on which small cars were operated to haul the lead ore from the point where it was being mined toward the shaft or other portion of the mine. To the main track, switch tracks were connected. These switch tracks would lead up to the point where the ore was being mined. The main track was of a more permanent and stable character than the switch tracks. The switch tracks were more or less of a temporary character, because they were being changed from time to time as the work of blasting the rock in the "headings" progressed. In these headings the rock was shot down by the drillers, and temporary tracks were laid up to this rock. Shovelers would then shovel the lead-bearing rock into the truck. Plaintiff, and his co-worker, Jesse Lee, on the occasion in question, were engaged in loading these one-ton trucks in one of these headings, and when one was loaded they would push this car to the main track, about 30 feet away, and the cars would then be conveyed to another portion of the mine.

There is considerable variance in the testimony of different witnesses as to the incline in this 30 feet of temporary track over which plaintiff and his helper were pushing these cars. Plaintiff testified that it was a 3½ foot drop from a distance of 30 feet, while his co-worker, Lee, said the track was about a foot and a half lower at its termination than it was 30 feet back, but that they had to push the car up this incline.

In describing the situation, plaintiff said:

"The track came up on kind of a curve, and there was several bent rails in there which throwed the joints up in very bad condition. It had been shot, and the rocks had bent the rails, throwed the outside rail up something like that [indicating]. When the car hit that it broke me down."

Plaintiff had been furnished with only one man to assist him in pushing these cars up the incline, although he had asked the "shift boss" for a mule to pull the cars out with. Plaintiff was told that no mule could he furnished him, and that it would be only a short time until the track would be changed.

In describing the accident, plaintiff testified:

"Well, we were pushing on the heavy loaded car, and it came to this high place. I was pushing against the car, and when it struck that high place it broke me down. The car stopped, and we was pushing on it all we could, putting out all the power we had, and it just broke me down."

Lee held the, car off plaintiff until the contractor, a Mr. Rasnick, came and helped push the car out. This track had been in this same condition for about 5 days. There was some evidence to the effect that shovelers at other places had a mule to pull these cars, and that they were not pushed by hand unless the track was on level ground, or on a down grade. A part of the time during the 2 weeks plaintiff worked there he had a mule to pull out the loaded cars and set in the empties. Lee, who was working with plaintiff, said it was a good load for 2 men to push a car of ore up this incline, and that this particular car ran harder than the others, because the axle was probably sprung. In describing the accident, he said that plaintiff "slipped and kinda went down in his back; his feet slipped out from under him; he held to the car and, it kinda threw him down." When he was asked whether or not he noticed anything that might indicate that there were humps in the track, he answered:

"Well, you know it was just a heading track; they had probably shot it out and put it back, you know, and we had run several cars over it."

When asked whether or not, in pushing cars over the track, he sometimes struck things that indicated there were humps in the tracks, he answered:

"Yes; we found a difference in pushing the cars; some run harder than others."

The evidence offered on the part of the defendant tended to show that there was only about one-half of one per cent. grade on this 30 feet of track, and that this track over which plaintiff was pushing the car at the time he was injured was built and constructed in the usual and ordinary manner in which "heading" tracks were built and constructed in underground mines such as the one in which plaintiff was working at the time he was injured.

Defendant requested peremptory instructions in the nature of demurrers at the close of plaintiff's case and at the close of the whole case, which the court refused to give. Plaintiff went to the jury by requesting only one instruction, and that on the measure of damages. There were six instructions given at the request of the defendant.

The first contention made by defendant in this court is that the instructions in the nature of a demurrer should have been given, because plaintiff's injury resulted from a misconception of the amount of physical strength to be exerted, and because he attempted to exert more strength than he had. and that under such circumstances he cannot recover. In support of this contention, defendant cites the following cases: Haviland v. K. C. P. & G. R. Co., 172 Mo. 106, 72 S. W. 515; Jones v. Cooperage Co., 134 Mo. App. 324, 114 S. W. 94; Petrilli v. Swift & Co. (Mo. App.) 260 S. W. 516. A brief reference to these cases will be necessary in order to determine whether or not the law as applied to the facts in those cases governs here.

The charge of negligence in the Haviland Case was a failure to furnish safe and suitable appliances; namely, the employment of 4 men where 8 were alleged to be necessary. Plaintiff was assisting in pushing rails up a greased skid, 15 feet long, at an angle of 40 degrees. While so engaged in the work of shoving or pushing, he strained his back. The evidence disclosed that he was injured by exerting more effort than was necessary. or that he was ordered or expected to do, and without any apparent reason for so doing. It appears in the Haviland Case that the 4 men furnished for the job of pushing these rails could easily have performed the services without any additional help, and no complaint was made of any insufficient help.

The evidence in the instant case tends strongly to show that 2 men were not sufficient to perform the services which they were required to perform. This fact distinguishes it from the Haviland Case, and the further fact is in evidence here that plaintiff did complain to the foreman. The jury could very well have found from the testimony in this record, that defendant failed to furnish sufficient help and assistance to enable plaintiff to do the work in a reasonably safe manner, and such is one of the charges of negligence alleged in the petition. It will also be noted that in the Haviland Case there was no defect in the skid, while in this case the evidence of plaintiff is that there was a defect in the track, a hump, which the car struck and stopped, causing plaintiff to slip and injure himself.

In Jones v. Cooperage Co., supra, plaintiff was engaged in piling bolts on a high rick and was injured by reason of catching his foot upon some object upon the ground and stumbling, so that the bolt crushed his hand. It was held that he could not recover, because the petition alleged, as a ground for recovery, that the defendant negligently ordered him to pile the bolts on a rick which was in an unsafe condition. Plaintiff's injury did not result from overstrain, but was caused by plaintiff catching his foot in some object on the ground which caused him to pitch or stumble forward. The court held the proximate cause of the injury was the object against which he struck his foot. The facts of the Jones Case cannot govern here.

We next consider the case of Petrilli v. Swift & Co., supra. There plaintiff, under instructions from his foreman, was not pushing a truck but was pulling one. He was standing on level ground, and in front of the truck, trying to pull it up an incline, and ruptured himself by overexerting himself to prevent the truck from rolling back. The court in that case said plaintiff was in no danger of the truck running upon him or striking...