175 Mo. App. 421 | Mo. Ct. App. | 1914
On the 3rd of January, 1912, Thomas Gray, a coal miner -working in the defendant’s mine, was killed hy a dust explosion. His widow brought this suit for damages under section 8471, Revised Statutes 1909.
The petition is in two counts. The first charged a negligent violation of section 8477, Revised Statutes 1909, in that shots (used in blasting coal from the solid) were fired before the employees had time to leave the mine, and that, as the mine had been allowed to become very dusty, one of these shots caused a dust explosion which killed the deceased; that it had been a practice to fire these shots before the miners were out; that this practice was well known to defendant and also known by it to be dangerous and in violation of law. The second count charged that the defendant had allowed its mine to become very dusty owing to its failure to keep- said mines sprinkled, and thereby the galleries or passage ways leading from the place where deceased was working to the bottom of the shaft, and which he must traverse in going to and from his work, had become unsafe and dangerous from
The suit was brought against the defendant, Grand River Coal & Coke Company, a corporation, and one John Kilholland who was alleged to be the defendant company’s agent and vice principal and who fired, or superintended and ordered the firing of, the shots. But after the testimony was in, and before the case was submitted to the jury, plaintiff dismissed as to Kilholland. A verdict was returned in plaintiff’s favor and defendant appealed.
The point is made that the trial court had no jurisdiction over the defendant coal company. It is a corporation doing business in Harrison county. Its mine is located there and the cause of action accrued in said county. Plaintiff and Kilholland both reside in Macon county. . Suit was instituted in Macon county and service obtained on Kilholland, and then summons was issued to Harrison county and there served on the defendant coal company. Section 1754, Revised Statutes 1909, requires suits against corporations to be brought in the county where the cause of action accrued or where the company keeps an office or agent. No agent was kept or maintained in Macon county, and the cause of action accrued in Harrison county. Consequently defendant says the circuit court of Macon county obtained no jurisdiction dver .the defendant coal company and neither did the circuit court of Linn county to which the cause was taken on change of venue.
It is next contended that the defendant, John Kilholland, was not a servant of the defendant coal company, but an independent contractor, and hence the last named defendant’s demurrer should have been sustained.' It is claimed that Kilholland was an independent contractor with the defendant coal company to mine coal off the vein or solid as it lay in the earth in
The defendant coal company for a long time had been and was operating the mine which was a large one in which many men worked. All of its equipment was in use by it to remove the coal from the various . places where it was taken out of the vein to the bottom of the shaft and from thence to the top. Under the arrangement with Kilholland he was to mine, and load in mine cars, all coal from four rooms and entries on the south and east side of the shaft, the company to remove the coal along with its other movements in the regular operation of the rest of the mine. Kilholland agreed to employ no union labor without the consent of the company and the company had the right to remove any of the men for cause at any time, and if Kilholland did not keep all the places in his rooms filled, the company could place men in them. The evidence shows that the control of the mine was at all times with the company. It hauled the coal; furnished air for all the mine; the men were hoisted and lowered by it; the brattices, or plank partitions put in to direct the air currents were built by the company; there was no dividing line between one side of the mine and the other; the practical effect of it all was that the entire mine was being mined and operated as one mine by the defendant coal company; the work was a dangerous work; and the things alleged to have caused-the injury were matters enjoined by statute upon the owner and operator of the mine. Under all these circumstances we do not think Kilholland could be said to occupy the status of an independent contractor to
As the case is founded upon the violation of a statutory duty there is no room for application of the doctrine of assumption of risk. To allow this would
The only question remaining is, was Gray guilty of contributory negligence? Tbis was a question for tbe jury. It was submitted to them. They found be was not guilty of negligence. Unless it was conclusively shown that tbe explosion was caused by Gray’s negligence, or that be was injured by reason of bis negligent delay in leaving tbe mine, we are bound by tbe finding of tbe jury on the question. Tbe evidence has been carefully read and studied. There was abundant evidence to sustain tbe jury’s finding. Tbe verdict must be accepted. Judgment affirmed.