Watson v. St. Joseph Coal Mining Co.

• Decision Date: 22 October 1932
• Docket Number: No. 30293.,30293.
• Citation: 53 S.W.2d 895
• Parties: WILLIAM WATSON v. THE ST. JOSEPH COAL MINING COMPANY, Appellant.
• Court: Missouri Supreme Court

53 S.W.2d 895

WILLIAM WATSON v. THE ST. JOSEPH COAL MINING COMPANY, Appellant.

No. 30293.

Supreme Court of Missouri, Division One.

October 22, 1932.^*

Appeal from Clinton Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

R.H. Musser, Lavelock, Kirkpatrick, Clark & Garner for appellant.

The court erred in overruling and refusing to give defendant's general demurrer to the evidence offered at the close of plaintiff's case, and again at the close of the whole case. Because there was no evidence that plaintiff was invited or directed by any employee of defendant to go to the place where he was injured, to-wit, to the coal car. O'Brien v. Western Steel Co., 100 Mo. 182; Menteer v. Fruit Co., 240 Mo. 177; Marcheck v. Klute, 133 Mo. App. 280; Davis v. Ringolsky, 143 Mo. App. 364; Shaw v. Goldman, 116 Mo. App. 332; Watson v. St. Joseph Coal Co., 5 S.W. (2d) 122; Glaser v. Rothschild, 221 Mo. 180.

Pross T. Cross, Clay C. Rogers and Gerald Cross for respondent.

At the time of his injury, plaintiff was upon defendant's premises and at the place of injury, at its invitation and request, and defendant owed him the same duty as to a reasonably safe place, and as to the exercise of ordinary care to prevent injury, as it owed to its servant. Watson v. St. Joseph Coal Co., 5 S.W. (2d) 122; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Mullen v. Merc. Co., 260 S.W. 982; Kronman v. King, 289 Mo. 641, 233 S.W. 161; Glasner v. Rothschild, 221 Mo. 180; Roman v. King, 289 Mo. 641, 233 S.W. 161; Bonello v. Powell, 223 S.W. 1075; 6 Labatt, Master & Servant (2 Ed.) 7620. Therefore the law, thereon, as declared by the court on the former appeal, became and is the law of this case, on that issue, and is res judicata on this appeal. Loud v. Trust Co. 313 Mo. 552, 281 S.W. 744; Seibert v. Harden, 8 S.W. (2d) 905; Anderson v. Sutton, 316 Mo. 1058, 293 S.W. 770; Matthews v. Austin, 317 Mo. 1021, 297 S.W. 366; Watson v. St. Joseph Coal Co., 5 S.W. (2d) 122.

HYDE, C.

This is an action for damages for personal injuries sustained by plaintiff, while on defendant's premises. Defendant operated a coal mine at Vibbard, in Ray County. Plaintiff lived at Vibbard and worked as a section hand, on the Santa Fe Railroad, and as a farmhand in that locality. His evidence was that he asked William Clevenger, a coal miner in defendant's mine, to ask Mr. Schooler, the foreman of the mine, to give him work there. Plaintiff, at that time, was putting up hay on Clevenger's farm. Clevenger asked Schooler if he could give plaintiff a job and Schooler said he thought he could and to "tell him to come down and I will put him to work." Schooler also said that he had a man spoken for to crack coal, but if it took two men he would give him a job; that he could give him work cracking coal; and that he was having trouble keeping men working at it, as it was so hard they could not stand it. Clevenger told Schooler that plaintiff "was out all summer in the sun" and Schooler said: "He thought he could do the work." Clevenger told plaintiff that "Mr. Schooler told him to come out; he would give him a job." A day later plaintiff went out to the mine.

Defendant's mine was located, on the Santa Fe Railroad, one-half mile south of Vibbard station. The main line track ran past the mine from northwest to southeast. From just north of the mine, a switch track went due south, along the east side of the mine, within 10 to 15 feet of the shaft tower, which was a structure built over the mine shaft. The entrance to the shaft, used by the miners to go into the mine, was on the west side of this building. There were gates in front of this entrance and above it was a sign which read: "Danger, Keep Away From Here." On the south side of the shaft tower were steps, which led up to the weigh master's office, about 10 feet above the ground. Cars of coal were brought up the shaft, in an elevator or cage, and were there weighed. They were then run out on a track, above the railroad switch, dumped into railroad cars, taken back into the shaft tower, and returned to the mine. Above this elevated coal car track was another track, 25 or 30 feet high, which ran out of the east side of the shaft tower, across the railroad switch, onto a dump located between the railroad switch and the main line track. Cars of rock, from the mine, were elevated to the level of this track and run out on it, above the railroad switch, and dumped between the two tracks. West from the north side of the shaft tower, there was an engine house, in which were located the engines operating the machinery in the shaft tower. South of the shaft tower, there was a wash house, which the miners used when they came out of the mine. So far as the evidence shows, these were the only buildings on the premises.

Plaintiff said he had never been to the mine before and had no knowledge of how it was entered. He walked south down the railroad track from Vibbard until he came to the switch track. There he followed a path which went southwest between the shaft tower and the engine house. He saw no one, on the west side of the shaft tower, and went on around to the south side where he found the steps leading to the weigh master's office. He went up these steps, found the weight master, and asked him where Mr. Schooler was Plaintiff said he replied as follows: "He said he was in the bottom" (meaning in the mine). "He said, you go down and he will be out in a little bit." "He told me I would break coal in the car with Mr. Adams." Plaintiff then went down the steps and around on the east side of the shaft to the railroad coal car where Adams was breaking coal. He got up on the end of this car and asked Adams where Schooler was. "He said he was in the bottom but was liable to be out at most any time." With his arms resting on the edge of the car, plaintiff stood on the south end of the coal car in which Adams was working and talked to him about the work This coal car was directly under the rock car track, which ran from the shaft tower to the dump but plaintiff said he had not even noticed that there was an overhead track there. Plaintiff had not been there more than three to five minutes when a car loaded with rock was run out of the shaft tower, on this overhead track, and a large rock weighing 50 to 75 pounds fell and struck plaintiff's left arm. Plaintiff's arm was so badly mashed that it had to be amputated.

It was shown that the mine was short of cars for taking out rock; that under the instructions of the mine foreman, the miners had been loading the cars as full as possible; and that the car, out of which the rock fell, was loaded so full that pieces of rock were hanging over the sides. Defendant introduced evidence tending to show that plaintiff was loafing around the mine and had not come there on business. The jury found for plaintiff for $9,000. Defendant has appealed from the judgment, entered on this verdict, but no question is raised as to the amount of the verdict.

[1] Defendant contends that the court should have sustained a demurrer to the evidence and complains of certain instructions given at the request of plaintiff. Defendant first contends that plaintiff was not upon its premises as an invitee, but was a mere licensee. Defendant made this same contention, before the Kansas City Court of Appeals, after the first trial in this case which resulted in a judgment for plaintiff for $4,500. That court held that plaintiff was an invitee. [Watson v. St. Joseph Coal Mining Co., 5 S.W. (2d) 122.] We think that holding was correct and that there is ample evidence in the present record, to show that plaintiff went upon defendant's premises, at its invitation, to enter its employ and that he was, therefore, an invitee.

[2] Defendant, however, contends that even if plaintiff was an invitee the evidence conclusively shows that he went to a place which was not included in the terms of his invitation. Defendant says, further, that plaintiff pled an express invitation to visit a definite portion of the mine, for a definite purpose, by the following language of his petition:

"That on or about the 6th day of August, 1924, plaintiff was upon the mining premises and the mining grounds of defendant and upon the order and request and at the direction of defendant and for the purpose of reporting for and engaging in labor for defendant as its servant, in cracking coal in a coal car on its premises ... that while so on said premises at said time as aforesaid, and at defendant's invitation and request, and at said coal car and place where he expected and was expected to work, and that while on said premises and standing by or on said coal car."

Defendant says that there is no evidence whatever that plaintiff was invited to the place where he was injured, or that anyone directed him to go to the coal car. We think, however, that defendant makes too narrow a construction of the petition. It does not allege an invitation to a particular spot (the coal car), but on the contrary, it alleges a general invitation to the "mining premises and mining grounds of defendant." The part of the petition above quoted, which defendant construes as an allegation of a specific invitation to the coal car merely states the purpose of inviting plaintiff to the premises and not that he was invited to that exact place or spot.

Therefore, the only question to be determined on the demurrer is whether or not plaintiff, in going to the coal car, went beyond and outside of the bounds of his invitation. It is well settled that an invitation...