Weston v. Lackawanna Min. Co.

• Decision Date: 15 February 1904
• Citation: 78 S.W. 1044,105 Mo. App. 702
• Parties: WESTON v. LACKAWANNA MIN. CO.
• Court: Missouri Court of Appeals

78 S.W. 1044

105 Mo. App. 702

WESTON v. LACKAWANNA MIN. CO.

Court of Appeals at Kansas City, Missouri.

February 15, 1904.

MASTER AND SERVANT — PERSONAL INJURIES — SAFE PLACE TO WORK — ASSUMPTION OF RISK — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — CONFLICT.

1. If the instructions given for both parties together fairly state the law applicable, and if the omissions in those given for plaintiff are fully supplied in those given for defendant, the instructions are not subject to objections.

2. The servant's knowledge of the master's neglect to furnish a safe place to work does not convert the danger arising therefrom into an assumed risk, but the servant's knowledge is to be considered under the plea of contributory

negligence, and precludes a recovery only when the danger is so apparent that a man of ordinary prudence would have refused to do the master's bidding under such circumstances.

3. Where a correct instruction given for plaintiff conflicts with one given for defendant by reason of a defect in the latter, the defendant cannot complain of the inconsistency.

4. In an action for the death of a miner by the caving in of the mine, an instruction that, before plaintiff could recover, she must show by a preponderance of the evidence that timbers were necessary to support the roof of the mine, and that such timbers had been requested by the miners working therein, and, unless plaintiff has so shown, she cannot recover for failure of defendant to timber said drift, was properly refused.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Goldie A. Weston against the Lackawanna Mining Company. From judgment for plaintiff, defendant appeals. Affirmed.

McReynolds & Halliburton, for appellant. Blair & Decker and Gardner & Cameron, for respondent.

SMITH, P. J.

Action to recover damages for personal injuries resulting in death. The plaintiff is the wife of John Weston, deceased. In the petition it is alleged that said John Weston was employed as a miner by defendant at its mine, and, as such miner, it was the duty of said John Weston to go down in the drifts of defendant's said mine, and to work therein in assisting to get out ores; that it was the duty of said defendant to furnish the said John Weston a reasonably safe place in which to work, and to keep said mine and drift where said Weston was required to work in such condition that he and the other men working therein could work with reasonable safety. But plaintiff says that defendant, wholly failing in its duty in that regard, carelessly and negligently failed to inspect and examine the roof of the drift wherein said Weston was working in a proper manner, and carelessly and negligently failed to trim said roof so as to work out loose bowlders and rock therein, and carelessly and negligently failed to support the roof of said drift with timbers and props so as to prevent the same from falling and caving in on said Weston while at work, and to prevent rock, earth, and bowlders from falling upon him, and carelessly and negligently failed to adopt any means to render said roof reasonably safe, but, on the contrary, allowed said roof to become and remain in a dangerous and defective condition, by reason of bowlders and rock therein becoming loosened, and remaining loosened and liable to fall; and that such dangerous and defective condition of the said roof was known to defendant, or could have been known by it by the exercise of reasonable care on its part. The defenses pleaded in the answer were the assumption of the risk and contributory negligence. There was a trial, wherein the plaintiff had judgment, and from which the defendant appealed.

The defendant, by its appeal, has raised the question whether or not the trial court erred in its action in submitting the case to the jury. After a rather careful examination and analysis of the evidence, we have concluded that the action of the court in that respect is not subject to any just criticism. The allegations of negligence contained in the petition, and hereinbefore set out, were supported by evidence which we think was sufficiently ample to carry the case to the jury.

The court gave fifteen instructions, six of which were for p...