160 Mo. App. 326 | Mo. Ct. App. | 1911
Plaintiff is the widow of Henry Hoover, who was killed in defendant’s coal mine while engaged in its service as a miner. Plaintiff, charging that his death was. caused by defendant’s negligence, brought this action for damages and recovered judgment in the trial court.
■ It appears that the deceased was engaged with three others in mining coal with, an electric machine, which was operated by defendant’s foreman. The machine was about two feet wide and weighed near 2700 pounds. It is so contrived that it cuts, the dirt from under the coal.- The dirt is then racked and the coal propped up and left for those who load it. The foreman operating the machine was Charles Hoover, a son of the deceased. The deceased’s duty was to prop the coal after the dirt was taken from under it. He was an experienced miner. On the day of his injury they had begun work at eight o’clock and continued for nearly three hours when a heavy piece of slate
During the three hours the men were at work before his injury the roof was examined or tested by each of the four men, though the examination made by deceased was some distance from where the roof fell. The examination was made by tapping and it made a hollow or “drummy.” sound, as expressed by the witnesses. This was known to indicate that the roof was loose. The examinations were made in the presence and hearing of deceased. The last one was made by the foreman about fifteen minutes before the injury and it had a ‘ ‘ drummy ’ ’ sound. The foreman said that it “sounded drummy,” but he “believed we could make it through all right. ’ ’
In view of this evidence defendant insists that the trial court erred in not sustaining a demurrer to plaintiff’s case, since, as it contends, there was a clear showing of assumption of risk by the deceased. We have, however, concluded that under the rulings in this state the court took the proper action in refusing the demurrer and submitting the question to the jury. If danger from the defect is not so patent and manifest as to deter an ordinarily prudent man — if it is such that an ordinarily prudent man could reasonably think he might continue his work in safety- — he may do so, without relieving the employer of liability if injury follows. And in determining whether he acted with ■proper care and prudence the employee has a right to consider the judgment of the master, which, in this case, was in favor of proceeding with the work. The act of. the foreman in starting up the machine and continuing the work was, in effect, a direction to the men to continue. [Curtis v. McNair, 173 Mo. 270; Bradley v. Railroad Co., 138 Mo. 293; Huhn v. Railroad Co., 92 Mo. 440; Smith v. Coal Co., 75 Mo. App. 177; Anderson v. Coal & Mining Co., 138 Mo. App. 76 ; Morgan v. Railroad Co., 136 Mo. App. 337.]
Defendant objects to instruction numbered three, given “at the request of plaintiff, on the ground that it required of the injured workman a lower degree of care than that imposed on him by the legal rule. The instruction informed the jury that knowledge of the defective roof would not prevent recovery if deceased believed “that he could do said work at that time and place by the exercise of care, if you believe from the evidence that he used all the care required by his position.” Standing alone this declaration of the rule would be subject to the criticism made by defendant. In effect it would invest the jury with the purely judicial function of determining the degree of care the deceased was bound to exercise for his own protection. The legal rule imposed in such cases is the observance of ordinary care and the jury should not be allowed by the instructions of the court to employ any other rule. But we find the instruction numbered three does not direct a verdict nor assume to cover the whole case and, turning to other instructions given at the behest of plaintiff (especially those that do cover the whole case), we find in their hypothesis the requirement that the jury must believe from the evidence that the de~
Plaintiff’s fifth instruction assumed to cover the whole case and in its hypothesis, included the declaration that Hoover “had the right to rely upon the judgment of said boss as an assurance of safety” without specifically requiring the jury to find that he did rely on such assurance. The jury well might have believed from all the evidence in the case' that Hoover acted entirely on his own judgment and was uninfluenced by the assurance of the foreman in which event the plaintiff would have no cause of action. Isolated, the declaration quoted is erroneous, but in the light of its context and as modified and illuminated by other instructions we think the jury must have understood that the plaintiff could recover on no other ground than that of reliance by her husband on the assurance of the foreman. Throughout the trial that element of her cause of action was the most prominent and the most seriously contested and no reasonable mind can con-. strue the instructions to mean that plaintiff could recover regardless of whether or not the deceased was injured in consequence of his reliance on the superior judgment of the master.
We find no prejudicial error in the instructions and pass to other issues.
Before the trial, the court, at plaintiff’s instance, struck out the fourth, fifth and sixth paragraphs of defendant’s answer. The fourth was a plea that de
The fifth and sixth paragraphs of defendant’s answer, in effect, pleaded that the foreman was a fellow-servant of deceased and the two others, working together, and that they were all members of a labor organization known as the “Miners Union,” and that this organization dictated to and compelled defendant to employ the foreman, and that while he was employed by defendant, such employment was against its will and that it was compelled by such union to accept the services of the foreman, and that it had no right or authority to discharge the foreman for neglect of duty, such authority being assumed by the union.
As already stated we have a statute which makes mining companies and corporations liable to an employee for the negligence of a fellow-servant. Labor unions — organizations for the advancement and protection of laborers — have existed in this , country and in England for a great number of years. Especially in recent times have they grown to be a part of the industrial fabric, and have become a recognized part of our institutions. Their existence, and their action taken for mutual protection, by its constant exercise, were known'to everyone and yet the Legislature, with
It is not clear what was meant by these parts of the answer. The allegations approach nearer to a charge of duress than anything else, yet they are wholly insufficient in that respect. If intended as a charge of duress of the person of defendant’s managing officer or officers, it does not state in what way they were placed in bodily fear and thereby compelled to employ deceased and his fellow-workman, neither does it state in what way they were put in bodily fear if they should attempt to discharge any employee.- [Murdock v. Lewis, 26 Mo. App. 234.] If it was intended to charge duress of property, it does not appear, by intendment' or otherwise, in what way they were put in fear of loss of property; nor whether there was any ground to suppose there would he an immediate attempt to carry out the threat of its destruction. So, whether considered as an attempt to charge duress of person, or property, the pleas were wholly insufficient. [State ex rel. v. Stonestreet, 92 Mo. App. 214.]
If a charge of duress be disclaimed and this part of the defense be put upon the ground that defendant did not employ or discharge those working for it and was not responsible for their conduct, it would he- so inconsistent on the face of the remainder of the pleading as to afford no reason for'complaining of the court in striking it out. But it is difficult to understand that defendant could, in good faith, mean the plea as a real defense, in the face of the fact that it continued to run its business with such employees, continued such
We have had hut one authority cited on the general subjects (Farmer v. Kearney, 115 La. 722), and that we do not consider applicable to the particular matters alleged in this case. The judgment is affirmed.