Wojtylak v. Kansas & Texas Coal Co.

• Decision Date: 16 May 1905
• Citation: 87 S.W. 506,188 Mo. 260
• Parties: WOJTYLAK v. KANSAS & TEXAS COAL COMPANY, Appellant
• Court: Missouri Supreme Court

87 S.W. 506

188 Mo. 260

WOJTYLAK v. KANSAS & TEXAS COAL COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 16, 1905

Appeal from Jackson Circuit Court. -- Hon. Edw. P. Gates, Judge.

Reversed and remanded.

Daniel B. Holmes for appellant; W. C. Perry and Adiel Sherwood of counsel.

(1) The demurrer to the evidence should have been sustained. Fuchs v. St. Louis, 167 Mo. 645; Agan v Shannon, 103 Mo. 665; Grattis v. Railroad, 153 Mo. 403. (2) The court committed error in giving plaintiff's first instruction. (3) Prejudicial error was committed by the trial court in admitting the testimony of John H. Atwood, attorney for plaintiff, as to when that attorney first became aware that defendant claimed to have plaintiff's release of the cause of action sued on. Hambricht v. Brockman, 59 Mo. 52; Preston v Railroad, 132 Mo. 111. (a) Gardner v. Railroad, 135 Mo. 100; Lumber Co. v. Roy, 126 F. 524; Warner v. Railroad, 62 Mo.App. 192; Frazer v Railroad, 38 Pa. St. 104; Snodgrass v. Carnegie Steel Co., 173 Pa. St. 228; Heaney v. Iron & Steel Co., 25 Sc. Sess. Cass. (4th Series) 903; 1 Labatt, Master & Servant, sec. 365a and sub. 2, n. 2, p. 957; Davis v. Coal & Coke Co., 34 W.Va. 500; Beall v. Railroad, 38 W.Va. 525; Francis v. Railroad, 110 Mo. 387; Church v. Railroad, 119 Mo. 203; Hudson v. Railroad, 123 Mo. 445; Railroad v. Finley, 12 C.C.A. 595; Railroad v. Reesman, 9 C.C.A. 20; Russell v. Railroad, 47 F. 204; Hamman v. Coal & Coke Co., 156 Mo. 243; Agan v. Shannon, 103 Mo. 665. (b) Crane v. Railroad, 87 Mo. 595; Camp v. Heelan, 43 Mo. 591; Wade v. Hardy, 75 Mo. 394; Benson v. Railroad, 78 Mo. 504; State ex rel. v. Sitlington, 51 Mo.App. 256. (4) Reversible error was committed by the trial court in permitting the plaintiff to prove a certain incident and conversation with Tom Graham, the pit boss, some three-quarters of an hour after the accident happened. Meyer v. Lewis, 43 Mo.App. 422; Stephens v. Railroad, 96 Mo. 214; Anderson v. Railroad, 161 Mo. 420. (5) Reversible error was committed by the trial court in permitting plaintiff to prove that after the accident happened one Pokelli said to the pit boss, "he won't need the props what you did not send. Damn you, you are the fault of his getting hurt." Adams v. Railroad, 74 Mo. 556; Ruschenberg v. Railroad, 161 Mo. 80; Hamburger v. Rinkel, 164 Mo. 407; Roe v. Bank, 167 Mo. 426. (6) The trial court erred in permitting plaintiff to prove his average earnings at the mine in which he was injured. Coontz v. Railroad, 115 Mo. 673; Slaughter v. Railroad, 116 Mo. 274; Krueger v. Railroad, 94 Mo.App. 458; Stoetzle v. Sweringen, 96 Mo.App. 594. (7) Plaintiff's second instruction authorizing the jury to find that Thomas Graham was defendant's vice-principal should not have been given. Grattis v. Railroad, 153 Mo. 380. (8) The court erred in giving plaintiff's third instruction and in not giving the instruction asked by defendant numbered 8. Och v. Railroad, 130 Mo. 45; Harkey v. Ins. Co., 35 S.W. 230; Henderson v. Cass County, 107 Mo. 50; Ruppel v. Mo. G. and B. Assn., 158 Mo. 622; Furniture Co. v. Davis, 86 Mo.App. 300. (9) Reversible error was committed by the trial court in giving the instruction of its own motion numbered 1 instead of the refused instruction asked by the defendant numbered 9. Fuchs v. St. Louis, 167 Mo. 645; Agan v. Shannon, 103 Mo. 665. (10) The trial court erred in giving instruction numbered 2 of those given of its own motion and in refusing to give the instruction asked by defendant numbered 18, both of which pertained to the assumption of risk. Hamman v. Coal and Coke Co., 156 Mo. 244. (11) The plaintiff's suit is barred by reason of the Kansas Statute of Limitations. Kansas Stat. 1897, sec. 12, chap. 95; R.S. 1899, sec. 4280; Gen. Stat. Kan. 1889, sec. 4102; Finnell v. Railroad, 33 F. 427; Type Foundry Co. v. Jackson, 128 Mo. 119; Berkley v. Tootle, 163 Mo. 584. (12) The trial court erred in refusing to give instructions numbered 11, 13 and 16 on the subject of contributory negligence. (13) Error was committed by the trial court in submitting the validity of the release to the arbitrament of a common law jury. Art. 1, sec. 10, Const. of U.S.; 14th amendment, sec. 1, Const. of U.S.; art. 2, sec. 15, Const. of Mo.; art. 6, sec. 1, Const. of Mo.; State ex rel. v. Rombauer, 104 Mo. 619; Moore v. Railroad, 85 Mo. 596; Garland v. Railroad, 85 Mo.App. 579; Miller v. Railroad, 109 Mo. 356; Crispin v. Babbitt, 81 N.Y. 516; Deserant v. Railroad, 9 New Mex. 495; State ex rel. v. Rombauer, 105 Mo. 103; State ex inf. v. Shepherd, 76 S.W. 79; Railroad v. Brick Co., 85 Mo. 307; Jim v. State, 3 Mo. 147; Blunt v. Sheppard, 1 Mo. 219; Calloway v. State, 1 Mo. 211. (14) The damages awarded are grossly excessive and the result of passion and prejudice on the part of the jury. Whittlesey's Mo. Prac., 611; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435.

John H. Atwood, William W. Hooper and James A. Reed for respondent.

(1) "Generally, a servant cannot recover for those injuries resulting from causes seen and known by him. But, even when there is no order to do a given act, there are some modifications of the general rule. Thus it is held in many cases, where the servant knowingly incurs the risk of defective machinery, still, if not so defective as to threaten immediate injury, it is for the jury to determine whether there was negligence on his part." Stephens v. Railroad, 96 Mo. 209; Huhn v. Railroad, 92 Mo. 443; Shortel v. St. Joseph, 104 Mo. 114; Church v. Railroad, 119 Mo. 203; Hyatt v. Railroad, 19 Mo.App. 287. Both the pit boss and Wojtylak knew that the roof was unpropped. The pit boss, in our case, assured Wojtylak of his safety as the railroad boss did the workman in the Hyatt case, supra. Conroy v. Iron Works, 62 Mo. 35; Flynn v. Railroad, 78 Mo. 195; Hough v. Railroad, 100 U.S. 225. (2) If it should be urged that the contract between Wojtylak and the coal company was a Kansas contract and the law of the place of the making of the contract should control, our answer is, first, that the presumption is that the law of Kansas is the same as that of this State until the contrary is shown, and, second, that the most recent utterance of the Supreme Court of Kansas on this subject coincides with the Missouri doctrine. Railroad v. Moore, 29 Kan. 632; Mining Co. v. Robinson (Kan.), 73 P. 102; Coal & Coke Co. v. Beaver, 61 N.E. 335; Bowerman v. Mining Co., 71 S.W. 1062; Coal Co. v. Herbeck, 60 N.E. 105. The statute, in the light of its interpretation by the Court of Appeals in the case of Bowerman v. Mining Co., 71 S.W. 1062, is controlling in this case. (3) After Graham had been informed by Wojtylak that props were needed in his room and that he was fearful that the roof would fall, Graham made no pretense of examination, but directed Wojtylak to go into his room to work and assured him that he could do so safely. It is not enough to say, he did examine it the day before and found it all right. When applied to, as he was by Wojtylak, it became his duty to make such an examination as would enable him to know, or have good reason to believe, that he was speaking the truth, before he made the positive statement about the absence of danger. (4) Appellant contends that we could not sue because the claim had been extinguished by operation of the Kansas statute. This contention is upset by the case of Williams v. Railroad, 74 P. 600, decided by the Supreme Court of Kansas, which distinctly holds that, under circumstances like those in this case, the action against a foreign corporation is not barred.

OPINION

GANTT, J.

This is an action for personal injuries, begun in Jackson County Circuit Court, the accident out of which the injuries arose occurred at Leavenworth, Kansas, on July 9, 1894. The defendant company at the time of the accident, and for years prior thereto, was the owner of and operated the Riverside coal mine located at Leavenworth, Kansas. The plaintiff was injured in said mine on July 9, 1894, by the falling of the roof of the mining room in which the plaintiff was employed. His injuries were to the lower part of the back and spinal column, which resulted in paralysis of his lower limbs. He was forty years of age at the time of the accident.

The plaintiff was a native of Poland, but had resided for a number of years prior to the accident, and ever since, at the city of Leavenworth, Kansas. He emigrated to this country in 1887, and first located in Colorado, and after working about two months on the railroad began working in a coal mine. He worked at coal mining a year in Colorado, and then came to Leavenworth and went to work in the Riverside coal mine, and was continuously employed therein until he was hurt in 1894.

On the part of the defendant it is insisted that he was a miner of extended experience and understood his duties and the dangers of his occupation. On the part of the plaintiff it is contended that his mentality was very slight and that he had never become a skillful miner. There is little or nothing to show that he was other than a man of ordinary capacity and of sufficient intelligence to understand the nature and character of his duties and the dangers of his occupation. He was able to speak and understand the English language fairly well.

The amended petition, on which the cause was tried, alleged that the defendant was a corporation under the laws of Missouri with its principal offices in Kansas City, and was the owner of the said Riverside coal mine in or near Leavenworth, Kansas; that the various strata, rock, earth and slate, constituting the roof of the said mine, was so situated and formed that in order to render employment in said mine reasonably safe it was at all times necessary that said roof should be supported by...