Swearingen v. Consolidated Troup Mining Company

• Citation: 111 S.W. 545,212 Mo. 524
• Parties: ELMER A. SWEARINGEN v. CONSOLIDATED TROUP MINING COMPANY, Appellant
• Decision Date: 30 May 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 545

212 Mo. 524

ELMER A. SWEARINGEN v. CONSOLIDATED TROUP MINING COMPANY, Appellant

Supreme Court of Missouri, First Division

May 30, 1908

Appeal from Jasper Circuit Court. -- Hon. Howard Gray, Judge.

Affirmed.

A. E Spencer for appellant.

(1) The court erred in giving instruction 3 on behalf of plaintiff. The question for the jury was whether the condition was such that a reasonably prudent man would have refused to obey the order. If so, plaintiff was guilty of contributory negligence although the danger of the timbers falling was not so manifest or glaring as to threaten immediate injury. Bradley v. Railroad, 138 Mo. 309; Halliburton v Railroad, 58 Mo.App. 34; Aldridge v. Furnace Co., 78 Mo. 565; Chicago, etc., Co. v Sokowiak, 148 Ill. 573; Crookston Lumber Co. v. Boutin, 149 F. 680; Musser, Etc., Co. v. Brown, 126 F. 141; Cudahy Packing Co. v. Skoumal, 125 F. 470. (2) The court erred in refusing to instruct the jury that plaintiff could not recover, and in submitting the case to the jury. The evidence is that one of the posts was misplaced through the act of plaintiff. That it was then braced and supported by plaintiff and his fellow workman, was carefully examined by the representatives of defendant, and thought by them to be safe to work upon; that the proper way to handle the situation was to go upon the pen and throw down the timbers; that plaintiff was directed to and did go on the pen and throw down some of the timbers, and that for some reason not shown the pen fell and injured plaintiff. This does not convict defendant of negligence. Nolan v. Shickle, 3 Mo.App. 300; Hamilton v. Railroad, 100 S.W. 671; Beebe v. Railroad, 108 Mo.App. 138; Haynie v. Hammond Packing Co., 103 S.W. 580; Howard v. Railroad, 173 Mo. 524; Rickaly v. Boiler Works Co., 108 Mo.App. 138; Bowen v. Railroad, 75 Mo. 274; Patton v. Railroad, 179 U.S. 658; Railroad v. Sanders, 166 U.S. 620; Montana Copper Co. v. Van Buren, 123 F. 61; Shandrew v. Railroad, 142 F. 320; Omaha Packing Co. v. Sandusky, 155 F. 897.

William B. Skinner with Thomas & Hackney for respondent.

(1) The third instruction given by the trial court, of which complaint is made by appellant, in principle and in the very wording thereof, is correct, and the same has been many times approved by the appellate courts of this State. Carter v. Baldwin, 107 Mo.App. 217; Harriman v. Railroad, 27 Mo.App. 435; Huhn v. Railroad, 92 Mo. 440; Stephens v. Railroad, 96 Mo. 207; Warner v. Railroad, 62 Mo.App. 184; McGowan v. Railroad, 61 Mo. 528; Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Hammon v. Central Coal & Coke Co., 156 Mo. 232; Holmes v. Brandenbaugh, 172 Mo. 53; Clippard v. Railroad, 202 Mo. 432; Shepherd v. Railroad, 189 Mo. 362. (2) The trial court properly refused defendant's instruction in the nature of a demurrer to the evidence, and the cause was properly submitted to the jury, and the evidence amply supports the verdict and judgment herein. Gallagher v. Edison Illuminating Co., 78 Mo.App. 576; Sackewitz v. Am. Biscuit Co., 78 Mo.App. 144; Blanton v. Dold, 109 Mo. 64; Turner v. Haar, 114 Mo. 335; Hamilton v. Railroad, 100 S.W. 671; Holweg v. Bell Telephone Co., 189 Mo. 165; Folk v. Schaffer, 186 Pa. St. 253; Beebe v. Railroad, 103 S.W. 1019. (3) Instruction 4, given for plaintiff, on the measure of damages, of which defendant complains, is correct. A similar one was given in Carter v. Baldwin, supra, and it was not even criticised, and the form thereof has been many times approved by this court. Plaintiff testified that he had been unable to work since his injury.

OPINION

VALLIANT, P. J.

Plaintiff recovered a judgment for $ 10,000 as damages for personal injuries which he alleges he sustained through the negligence of the defendant. From that judgment the defendant has prosecuted this appeal.

Defendant is a mining corporation and plaintiff was one of its employees. The mine in which the accident occurred consisted of a shaft about one hundred and thirty feet deep and a main drift extending therefrom eighty or one hundred feet, and from this main drift a side drift was being cut which at the time of the accident had been cut to a distance of thirty to forty feet. It was in this side drift that the accident occurred. The condition of the earth through which the drift was being cut was such that it required what is called "timbering" to support the roof. The drift was about fourteen feet wide and estimated to vary from sixteen to thirty feet high. The work of timbering and that of cutting the drift was done under the supervision and direction of a foreman named Harry Needles called "the ground boss." The plaintiff was one of the gang of laborers doing the work. He was twenty-four years old. He had been doing mining work five or six years, and had been doing this kind of underground work about a month. The structure called timbering is thus described in appellant's brief: "This was done by placing two upright posts of proper diameter opposite each other near the two walls of the drift. Resting on top of these posts was a heavy timber, called a cap, running across the drift. A few feet ahead of this were put in two other posts and a cap. Then timbers, called stringers, were laid over the two caps, and on this was built up of timbers a pen, decreasing in size to correspond with the arch of the roof of the drift. When this pen got near the roof the remaining space from top of pen to the roof was packed tightly with cordwood. The four posts, with caps and superstructure, were called a set of timbers."

The testimony for the plaintiff tended to show that Needles, under whose personal supervision the work of timbering was being done, stopped the work before the last set of timbers had been "keyed up or braced." Defendant objected to that evidence on the ground that it was attempting to prove an act of negligence different from that charged in the petition; the court overruled the objection and allowed the evidence, not as tending to prove negligence, but as going to show the condition of the set of timbers, and later at the request of the defendant the court gave an instruction to the jury that they should not consider it as any ground for holding the defendant liable. As soon as the last set of timbers was finished, which was about 2 or 3 o'clock in the afternoon, the ground foreman, Needles, directed the plaintiff and his work-mate to drill a hole in the face of the drift and shoot by exploding dynamite in it. This the plaintiff and his mate immediately set about doing and finished it about 3:30 or 4 p. m. and loaded it to shoot, then they retired to a safe place until the shot was fired.

When Needles gave the order to plaintiff to drill the hole and shoot he went off to some other part of the mine, and was not present during the performance of that work. After the shot was discharged plaintiff and his coworker returned to the scene and they there discovered that by force of the explosion one of the four upright posts on which the set of timbers was built had been knocked out of line, estimated by plaintiff to be ten or twelve inches at the top, by other testimony estimated at eighteen inches or two feet, the cap had been partly displaced, and four or five sticks of the cordwood had fallen to the ground, but from where he stood with the poor light and the smoke he could not see the condition of the pen or how far it was out of line. Plaintiff and his companion then undertook to brace the leaning timber and did so as best they could with the means at hand, and after moving the fallen cordwood out of the path of the shovelers they went out of the mine to get their suppers, their regular day's work being then ended. After the plaintiff left the mine, Needles returned to the scene of the explosion and examined the situation and then he went out of the mine and going to plaintiff just before supper told him that he would have to work extra and go under ground after supper and fix the timbers that had been displaced by the explosion. Accordingly after supper plaintiff returned with Needles and others to the scene. There were five or six men in all there; each had the usual miner's lamp in his hat, which was the only light in the place. The testimony was to the effect that the condition of the crib, the extent to which it had been affected by the explosion, could not be well seen from where the men stood with the miner's lamps. The illuminating power of a miner's lamp was stated to be about that of an ordinary tallow candle. The foreman, Needles, with the help of one of the men, put a brace under the cap of the leaning post, using for that purpose a two-by-ten piece of timber. Then Needles ordered the plaintiff to climb up the structure and throw the timbers off. The plaintiff's testimony was that Needles said to him: "'Rustle on up there and throw off those timbers; let's hurry up and get them timbers straightened up,' and I asked him if it was safe. Q. What did you say to him? A. I said, 'Harry, is that safe?' and he said, 'Yes, it can't fall,' and I commenced climbing on up and I began -- my partner asked the same -- and we went up and went to throwing off this pen, or we went up, and I think I threw off a stick or two; I had been up there a very few minutes before it fell down." In his fall the plaintiff was buried in a mass of fallen timbers and received very serious injuries. The other man who was working with the plaintiff and who was also ordered by Needles to go up and assist in throwing off the timbers started to climb up but before he reached the top the structure fell. Other witnesses who were present at the accident testified substantially as did the plaintiff. A witness testified that it was so dark in the place that when the plaintiff was climbing up the witness...