Van Kirk v. Hume-Sinclair Coal Mining Co.

• Decision Date: 04 April 1932
• Citation: 49 S.W.2d 631,226 Mo.App. 1137
• Parties: LORENE VAN KIRK ET AL., RESPONDENTS, v. HUME-SINCLAIR COAL MINING CO. AND CONSOLIDATED UNDERTAKERS, APPELLANTS
• Court: Kansas Court of Appeals

49 S.W.2d 631

226 Mo.App. 1137

LORENE VAN KIRK ET AL., RESPONDENTS, v. HUME-SINCLAIR COAL MINING CO. AND CONSOLIDATED UNDERTAKERS, APPELLANTS

Court of Appeals of Missouri, Kansas City

April 4, 1932

Appeal from Circuit Court of Bates County.--Hon W. L. P. Burney Judge.

AFFIRMED.

Judgment affirmed.

John A Hall for respondent.

Con Murphy and Silvers & Shephard for appellants.

OPINION

BLAND, J.

This is an appeal by the employer and the insurer from a judgment of the circuit court affirming an award of the compensation commission, in favor of claimants, who are the wife and minor children of the employee. The commission found that the amount of compensation due was $ 5,625, for which it made an award in favor of claimants, together with burial expenses in the sum of $ 150.

The employee, one Veteran Van Kirk, was killed while he was in the employ of the defendant, Hume-Sinclair Mining Company. Defendants, however, contend that his death was not caused by an accident and that the accident, if any, did not arise in the course of or out of the employment.

The facts, which outside of the expert testimony, are undisputed show that the employer was operating a coal mine in Bates county and that deceased was working thereat in connection with a large steam shovel, weighing 750,000 pounds. The steam shovel was used to remove the earth and rock from the top of a vein of coal which was buried on an average of thirty feet below the surface of the ground. The shovel was located on the top of the vein of coal and was about fifty feet in height and had attached thereto a boom ninety-seven feet in length, which extended out from the steam shovel at an angle of about forty-five degrees. The top of the boom was ninety feet from the ground on which the shovel was located. The shovel was operated by electricity. The power was obtained from a utility having a high tension transmission wire about one-eighth of a mile away. This wire conducted 33,000 volts of electricity. At this point this voltage was reduced to 4500 volts and transmitted therefrom through a cable to the steam shovel. This cable was about two and one-half or three inches in diameter and was insulated with about one-eighth inch of rubber. There were two switches connected with the cable for the turning on and off of the current. One of these switches was located about one-eighth of a mile from the shovel and the other 500 feet from it. The cable ran to a coil or drum located underneath the shovel which unwound as the work and the shovel progressed eastwardly. From the coil the cable ran westwardly down the pit along the top of the coal to these switches which were on the surface of the ground above the pit. After passing over the coil the cable, at its east end, was attached to a 437 horse power motor. This was an alternating current motor and drove a generator which generated a direct current of electricity, the current coming in to the shovel and motor being an alternating current. The current from the direct current generator supplied the motor that operated the shovel.

The shovel rested upon the vein of coal from which the earth had been removed. After the shovel removed the dirt from the coal the latter was mined and put on cars located on a so-called "dinky" track and from there transmitted away. The dinky track was likewise upon the vein of coal. Deceased's duty was to keep this dinky track clear of dirt.

Between eleven and 11:30 A. M., of August 18, 1930, a rain storm came up and some of the men working there sought shelter under the shovel. Deceased went to the oil house which was located in the pit upon the vein of coal and about thirty feet west of the shovel. The oil house was about ten feet square and had a door in the east end and a window in the west end. The rain caused a pool of water to form about the oil house to depth of from four to eight inches. The shovel was located upon four Caterpillar tractors, three of which, by reason of the rain, were in water. There was no water gathered under the shovel itself, but the coal thereunder was wet. The cable ran along the south side of the oil house and about six feet from it and through the pool of water which entirely surrounded the house. The rain storm was a heavy one, lasting from ten to twenty minutes.

One of the workmen, by the name of Meyers, testified that he went to the oil house to get a drink; that it began to rain; that he remained there on account of the storm; that when he went to the oil house deceased was standing in the door facing toward the east; that there was lightning and thunder and immediately thereafter deceased "jumped up and down, waving his hands and yelled, 'fire, fire, fire' the whole pit is on fire;" that the witness looked over deceased's shoulder toward the shovel; that he then saw a reflection of fire on the inside of the building; that he then looked out of the window at the back and saw the cable on fire about 200 feet back of the building; that this was from a half to three-fourths of a minute after he saw the lightning; that the fire on the cable was "about twelve inches big" and was about fifteen feet away from the water and at a place where the cable was swinging in the air about sixteen inches from the coal; that the fire scared him and, knowing that the situation was a dangerous one, he made preparations to get out of the building; that when he went to the door deceased was lying in the water, face down with his head toward the east about six feet east of the door and four feet north thereof and about twenty feet from the dinky track; that when he looked west and saw the blaze deceased was standing "right in the door;" that he walked about ten feet across the building to the door and then saw deceased lying in the water; that at this time he concluded that the water was charged with electricity so he remained in the building; that he saw deceased standing in the door before and after the flash of lightning; that he saw him lying face down in the water outside of the building about a minute after he last saw him alive; that there were no flashes of lightning during said minute; that deceased was lying about sixteen feet from the cable where it ran south of the building.

The witness, Cantwell, testified that he was under the shovel with some other men; that there was a flash of lightning and a heavy bolt of thunder; that fire rolled from under the shovel from the coil; that the "next thing, the man that was working with me said, 'did you feel that,' and we made a run for the dinky track. Q. Did you feel something? A. We sure did;" that he ran about fifteen steps before he saw deceased, who was standing in the door of the oil house; that the witness stopped and deceased "stepped out about three steps, I imagine, into the water. Q. Then what happened? A. Van Kirk looked as if though every step he would take he would bend over like a tree. Q. What direction? A. Forward. Q. Just fell over? A. Yes, sir. Q. You say his body appeared to be stiff as he fell over? A. Just like a tree;" that at this time the witness shouted to Meyers to "look out;" that two men ran for the switches and turned off the current; that when the witness first came from under the shovel he saw fire in the cable about 100 feet or so behind the shovel; that at this time the fire was about as big as a gallon bucket. "Then it ran down the cable before the fire went out until it looked like it was about twenty feet from where it first started. Q. Ran down the cable what direction? A. Towards the shovel;" that the cable ran through the water in which deceased fell; that there was no lightning after he heard the crash of thunder and saw the fire roll out from the coil; that as he ran out from under the shovel he felt "electricity;" that he went out on the dinky track to a point not over ten feet from where deceased was lying; that as he "ran through this water within ten feet" of deceased he received an electric shock, "all I could walk with."

"Q. How far did this fire on the cable progress from the time you ran out from the shovel to the dinky track, and the time you saw VanKirk step out of this door into the water? A. When I came out the fire was as big as a gallon bucket and then it shorted down into the water--looked like about twenty feet of it was on fire--a long place.

"Q. But you stepped out of this water before VanKirk came out of the door? A. Yes, sir.

"Q. And in the meantime the fire or the place you saw the blaze on the cable extended along about twenty feet down into the water where VanKirk stepped? A. Yes, sir;" that after he saw one of the men run toward one of the switches, "I waited there until the fire went out on this cable, then me and Mr. Meyers went" to deceased, who was dead.

The witness, Brown, who was also under the shovel, stated that he heard a loud crash and saw fire coming from the drum, coil or spool under the shovel; that he went out on the dinky track on the north side of the shovel about fifteen or twenty feet, then west to the back of the shovel when he saw deceased lying in the water; that he ran to the switch nearest to the shovel; that before he started to pull this switch he saw a small fire upon the cable about a foot and a half high and about 200 feet west of the shovel; that there was more or less water around the shovel, but not as much as around the oil house; that around the shovel it was possibly two or three inches deep but where the coal was higher there was not any; that the water around the oil house was four or five inches in depth; that the water around the shovel was not a continuous area of water, but around the oil house it was a solid mass; that this solid mass of water extended to the cable which was laying on the ground.

The witness,...