Wiley v. Central Coal & Coke Co.

• Decision Date: 02 April 1923
• Docket Number: No. 14453.,14453.
• Citation: 250 S.W. 619
• Court: Missouri Court of Appeals
• Parties: WILEY v. CENTRAL COAL & COKE CO.

250 S.W. 619

WILEY v. CENTRAL COAL & COKE CO.

No. 14453.

Kansas City Court of Appeals. Missouri.

April 2, 1923.

Rehearing Denied April 30, 1923.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by Chester Wiley against the Central Coal & Coke Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Lacy & Edwards, of Macon, for appellant.

Walter C. Goodson and B. R. Dysart, both of Macon, for respondent.

ARNOLD, J.

This is an action for personal damages. Plaintiff is a coal miner and had been in the employ of defendant for about 22 years prior to the injury which occurred on or about August 10, 1920, at which time he was working at defendant's mine No. 24, near Ardmore, in Macon county.

The testimony shows that on that date the said mine ceased operations for the day at about 3:30 o'clock m. and that plaintiff, with others, came out of the mine and seated himself in the shade on a bank about 8 feet from defendant's switch track, to wait for the train which carried the employees to and from their work. Plaintiff sat with his feet across a steel cable used in "spotting" cars at the coal chute. Said cable ran from the engine room along the top of the ground near the shaft and was operated over a spool or drum in a small house located a few yards north of the place where plaintiff was seated, power being furnished by the engine used in operating said mine. The machinery operating the cable was controlled by means of levers. The cable had a hook on one end which could be attached to cars into which coal was to be loaded, wherever they might be standing on, the track, and by this means the cars could be moved to the point of loading. Cars which were not too "stiff" were spotted by gravity, while others were moved, as stated, by means of the cable. When not in use, the cable was left slack upon the ground.

Plaintiff's evidence shows that on the occasion in question the operator of the levers, an employee of defendant, from his position on a flat car east of the controls, saw plaintiff seated as described; that said operator went directly to the lever controlling the cable, about 60 feet from where plaintiff sat, and threw on the power. The instant tightening of the cable raised It from the ground and plaintiff was caught beneath his legs and thrown backward on the ground, sustaining the injuries of which he complains.

The negligence pleaded in the petition is that—

"At and before the time the defendant, its agents, and servants so started the machinery operating said cable * * * the defendant, its agent, or servant who started same, saw, or by the exercise of ordinary care could have seen, the perilous position of plaintiff sitting with his legs across said cable, and that by the exercise of ordinary care the said defendant would not have started said machinery and cable until the plaintiff was warned of his danger, and could have moved to a place of safety, but that the defendant carelessly and negligently set in motion the said machinery, when the defendant knew or could have known, by the exercise of ordinary care, that its action in so doing would certainly result in serious injury to the plaintiff."

The answer pleads contributory negligence and assumption of risk. At the close of plaintiff's evidence defendant asked an instruction in the nature of a demurrer, which was sustained. Plaintiff thereupon took a nonsuit, with leave to move to set the same aside. Later, a motion to set aside the nonsuit was overruled by the court, and plaintiff appeals.

It is charged the court erred...