97 Mo. 62 | Mo. | 1888
This is an action for personal damages sustained by the plaintiff while in the employ of the defendant, a corporation engaged in mining coal. The action is founded upon the act of March 23, 1881. Acts of 1881, p. 165. The act, among other things, provides (section 6): “The owner, agent or operator of every coal mine operated by shaft shall provide suitable means of signaling between the bottom and the top thereof ; and shall also provide safe means of hoisting and lowering persons in a cage covered with boiler iron, so as to keep.safe, as far as possible, persons descending into and ascending out of said shaft.” Section 8 provides : “The top of each and every shaft, and the entrance to each and every intermediate working vein, shall be securely fenced by gates properly covering and protecting such shaft and entrance thereto.” Section 14 enacts r “For any injury to persons or property, occasioned by any wilful violation of the act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby.”
The evidence shows, without any dispute, that defendant failed to cover its cages with iron or other material, that the top of the shaft had no gates or other protection, and the only means of communicating from the top to the bottom of the shaft was by the human voice. It is in these respects that the petition charges a wilful failure to comply with the statutes, and
Since the plaintiff was not going up or down the shaft, and did not go into the lower cage for that purpose, the defendant insists that, as to him, there was no violation of that clause of the statute which makes it the duty of defendant to “provide safe means of hoisting and lowering persons in a cage covered with boiler iron, so as to keep safe, as far as possible, persons descending into and ascending out of said shaft.” If we stick to the letter of this clause, the point must be sustained. But we think it may receive a construction broad enough to include the present case. When the meaning of .the statute is clear, courts have no power to make qualifications or additions to cover seemingly omitted cases. It is, however, a familiar rule that a thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter. This intention must, of course, be gathered from the statute itself, not from detached portions, but from the whole statute taken in its general scope and purpose. Now the statute in question, in its many provisions, seeks to protect the health and safety of persons employed in and about mines, aild whilst going in and out of them. This is its general scope and
The next contention of the appellant is that knowledge on the part of the plaintiff that the cage was not covered with iron, and that no contrivance had been provided for signaling from top to bottom of the shaft, and that the top óf the shaft had no gates or other protection, should defeat the action. Such a declaration of law would in effect nullify the statute. Knowledge only by the plaintiff of the failure of defendant to have the mine provided with these protections will not defeat the action. It must be remembered that the plaintiff, to prevail, must show a wilful violation or failure to comply with the statutory regulations. Our statute seems to be the same as that of Illinois, and it has been held there that, though the injured person may not have been entirely free from fault, still if the jury found that the wilful conduct of defendant resulted in injury, the verdict would be justified. Litchfield Coal Co. v. Taylor, 81 Ill. 590. But we do not say in this case that plaintiff could recover if guilty of negligence himself.
There is evidence in this case that plaintiff was out of his place when in the cage, and that he should have
During the trial some evidence was received, over the objections of the defendant, that the cages cf defendant were, at the time of the trial, covered with iron and that a gate had been attached to one of the' openings in the shaft. This evidence was in express terms excluded by an instruction given at the request of the plaintiff. The point of defendant’s objection to this instruction seems to be that a party offering illegal evidence cannot have it excluded and thereby avoid a new trial or reversal, and that the party against whom it is offered can alone have'it excluded. An error in the admission of evidence will be cured by an instruction which in clear and in express terms withdraws it from thq consideration of the jury. Griffith v. Hanks, 91 Mo. 109; Stephens v. Railroad, 96 Mo. 207. The- court could of its* own motion withdraw or exclude such evidence, and this being so, we do not see that it can make any difference at whose request the evidence is withdrawn or excluded.
We cannot follow out the other numerous objections to the introduction of evidence. Some of them are without a particle of merit; and there is nothing in the others .to justify a reversal. The judgment is affirmed.