Morbach v. Home Mining Co.

| Kan. | Jul 15, 1894

The opinion of the court was delivered by

HortoN, C. J.:

On August 13, 1889, when the plaintiff was injured in the coal shaft of the Home Mining Company, that company was engaged in sinking, in Leavenworth city, a vertical shaft hundreds of feet deep, with lateral dimensions of about 16 by 16 feet. Peter Strauss was the superintendent in charge of the work. The sinking of the shaft was prosecuted night and day by three shifts of men, working eight hours each. Each shift was under the control of a foreman, who stayed at the bottom of the shaft while the men under his charge were working. The workmen were raised and lowered in going and coming from their work at the bottom of the shaft by a tub or bucket on a rope, operated from above. The shaft, on its way downward to the coal veins, passed through many different strata or formations, varying in thickness and kind, such as earth, sandstone, soapstone, limestone, shale, rock, etc. In going through the harder formations, it was necessary for the workmen to drill and blast, the men going out of the shaft when the blasts were fired.

For the protection of the men at work in the bottom of the shaft, it was necessary to crib or case the sides with timbers, to prevent rock and other substances from falling upon the men. This cribbing or timbering was done by making a lining of heavy timbers against the four sides of the shaft, fastening them to the walls and bracing them with cross beams between which the tub and rope moved up and down. It appears from the testimony that the casing in the shaft should have been kept down to within a few feet of the bottom of the shaft. It was the duty of the superintendent to see that the shaft was properly timbered. The plaintiff was a newcomer in Leavenworth, having been there a month only before he first went to work in the shaft. He previously worked in mines in Ohio, and had been connected with the sinking of coal shafts there. On the 13th of August, 1888, plaintiff applied to Strauss, the superintendent, for employment. The shaft was then about 80 feet in depth. The plaintiff, at this time, had no knowledge of the condition of the shaft, excepting such as he obtained from the representations of the superintendent, and what he could see in going down and after he was at the bottom of the shaft. He testified:

“Ques. You may state about what time in 1888 you- went to work. Ans. In August; I believe on the 13th.

“Q. Who employed you? A. Mr. Strauss.

“Q. What knowledge, if any, had you of the condition of the shaft when you went to work? A. Mr. Strauss said, ‘It is all right, nice, and safe.5 Mr. Strauss told me ‘that everything was all safe, and kept in nice shape.’

“Q. What time in the day did you go to work in the mine? A. In the afternoon. About 2 o’clock. *

“Q. How long had you been in the mine when you received the first injury? A. Well, I am not sure, two hours; it might be three. I could not tell.

“Q. Now state to the jury just how your first injury happened. A. Well, I came down in the shaft standing on the bucket. When I got down, I stepped out of the bucket, and the shift boss told me to bail water from a kind of a hole made there, and to bring it out in a bucket. I sat there with my face to the south, on the west side. A stone came down and struck me on the hip, knocking me down in the water.

“ Q,. What did you do immediately after you were knocked down? A. A man put me in the bucket and pulled me out.

“Q,. How long were you in the house at this time from this injury? A. Well, I think about three weeks.' It might be more.

“Q,. Tell the jury whether it was light or dark in the shaft. A. It was dark.

“Q,. What kind of lamps? A. A little lamp hangs on the caps.

“Q,. How many of you were there working in that shaft when you first got hurt? A. I believe there were six men.

“Q. Who was this shift boss that told you where to go to work? A. Mr. Sutton.”

An examination of the evidence of the plaintiff and thé other witnesses shows that there was ample testimony offered on the trial that the representations made by the superintendent to induce the plaintiff to go to work in the coal shaft were not true; that the cribbing or timbering of the sides of the shaft was not kept sufficiently far down to reasonably protect the workmen; that those in charge of the work had knowledge of the dangerous condition of the shaft prior to the time the plaintiff commenced work, and that, at the time he was first injured, the plaintiff had no knowledge of or any opportunity to ascertain the dangerous condition of the shaft.

i coalmining-boring or shaft empSye-evi-deuce — jury. The personal injury complained of by the plaintiff which occurred on the 13th of August, if the evidence contained in the record be true, was caused by the fault or negligence of the superintendent of the mining company having charge of the coal shaft. Such officer or agent was the substitute for the master — the corporation. The company was liable for his acts or negligence. (A. T. & S. F. Rld. Co. v. Holt, 29; Kas. 152; A. T. & S. F. Rld. Co. v. Moore, 29 id. 644; Railroad Co. v. Baugh, 149 U.S. 368" court="SCOTUS" date_filed="1893-05-01" href="https://app.midpage.ai/document/baltimore--ohio-railroad-v-baugh-93638?utm_source=webapp" opinion_id="93638">149 U. S. 368; Railway Co. v. Snyder, 14 Sup. Ct. Rep. 756.) It cannot be said that the plaintiff entirely failed to prove his case; therefore the evidence was sufficient to go to the ° jury to sustain the allegations of the first cause of action of the petition. (Osage City v. Brown, 27 Kan. 74" court="Kan." date_filed="1882-01-15" href="https://app.midpage.ai/document/city-of-osage-city-v-brown-7885554?utm_source=webapp" opinion_id="7885554">27 Kas. 74; Brown v. A. T. & S. F. Rld. Co., 31 id. 1; Wolf v. Washer, 32 id. 533; Christie v. Barnes, 33 id. 317; Gardner v. King,, 37 id. 671.)

3' siockhoiaer.

s''iauoiS-actio°n by stockholder. It is suggested, upon the part of the defendant, that, as the plaintiff was a stockholder in the mining company, owning three shares of stock, of the par value of $50 each, he was a. partner with the other stockholders, sinking his own shaft and managing his own business, and that he cannot recover. This contention is not tenable. A corporation differs from a partnership in many respects. The members of a partnership' are all agents of the firm and of each other in all matters within the scope of the partnership business. The members of a partnership are jointly and severally liable to pay all the debts or demands of the partnership. But the partnership is not liable in an action at law to the individual members for any claim or demand in a matter within the scope of the partnership, except that each member of a partnership may have, in certain cases, an action for an accounting with bis copart-ners. The members of a corporation can only act about the business of a corporation in their aggregate capacity, through a board of directors or trustees whom they have chosen, and the members are not liable for any corporate debts or demands, except «as provided by the charter of the corporation or by some statute. The stockholders are not the private and joint owners of the property of the corporation, and the interest of each stockholder is of a collateral nature, not the interest of an owner. (Button v. Hoffman, 61 Wis. 20" court="Wis." date_filed="1884-09-24" href="https://app.midpage.ai/document/button-v-hoffman-6604454?utm_source=webapp" opinion_id="6604454">61 Wis. 20; Thomp. Stockh., §§ 1, 2; Hyatt v. Allen, 4 Am. Corp. Cas. 624.) The plaintiff, as a stockholder, had no personal control or management of the mine, the coal shaft, or of the company. A corporatioñ does its business by its regularly ap/pointed officers and agents, whose acts are those of the cor-vporation only.

After the plaintiff partly recovered from the injury which ■he received on the 13th of August, 1888, he went to work •again in the mine. His second alleged cause of action is the ■ same in substance as the first, except that he alleged therein ■ another injury in the same shaft, by the falling of a stone, on ■ October 25, 1888, because the timbering was not kept close •enough to the bottom of the shaft, where he was working. The reason he gave for going to work again was, that Strauss, the superintendent, “promised him that he would keep the timbering down to within two or three feet of the bottom of 'the shaft.” He testified that the timbering ought to have •been kept down near to the bottom. He worked about 50 •days before he was hurt the second time. The former injury had made him acquainted with the danger of working in the ■ shaft. At his second injury, he knew how the business was being conducted, and whether the timbering was being kept •down for the protection of the workmen. Yet, when he was ■hurt the second time, the timbering was up from 12 to 15 ■feet. It was his duty to assist in the timbering, under the •direction of the foreman, aud he therefore knew just how far •the timbering was up.

4- where°notcui* pawynegh

to assumenot risk, when. “Usually, where some instrument or appliance has become unsafe, from use or otherwise, and the danger from its use is not imminent or obvious, the servant may con-dnue in the master’s employment and use, if for a short time, with the expectation that the master will restore the defective instrument or appliance to its former condition.” (Rush v. Mo. Pac. Rly. Co., 36 Kan. 129" court="Kan." date_filed="1887-01-15" href="https://app.midpage.ai/document/rush-v-missouri-pacific-railway-co-7886814?utm_source=webapp" opinion_id="7886814">36 Kas. 129.) But if a servant continues in his work an unreasonable length of time after the master has agreed to remedy the defect complained of, or if the danger is imminent or obvious, he assumes the risks incident .thereto. Generally, the question of reasonable time is one of fact for a jury; but where a servant has full knowledge of the danger of his employment, as in this case, after his first injury, and continues in the-master’s service’ while he is conducting his business in a way which the servant knows is dangerous, the servant cannot continue to wait, and, after being injured, then claim damages. He should leave his dangerous 0 . -T. employment within a reasonable time, on discovery of the master’s method of doing business, when he finds that the master will not remedy the danger or fulfill his promise in that respect.

We think that the plaintiff, who was fully capable of contracting for himself, and was an old and experienced miner,, knew the danger, which was imminent and obvious, from his own experience, in'working in the shaft after he went back about September 4, when the timbering of the shaft was-not kept in a reasonably safe condition, and cannot recover for the injury of October 25. (A. T. & S. F. Rld. Co. v. Schroeder, 47 Kan. 315" court="Kan." date_filed="1891-07-15" href="https://app.midpage.ai/document/atchison-topeka--santa-fé-railroad-v-schroeder-7888644?utm_source=webapp" opinion_id="7888644">47 Kas. 315.) For the same and stronger reasons,, the trial court properly sustained the demurrer to the third cause of action. Railway Co. v. Croker, 41 Kan. 747" court="Kan." date_filed="1889-01-15" href="https://app.midpage.ai/document/southern-kansas-railway-co-v-croker-7887735?utm_source=webapp" opinion_id="7887735">41 Kas. 747, is an extreme case. In that case the plaintiff had merely complained about the handle of the hammer he was using. He had not been previously injured, and the danger to him in using it was not clearly obvious.

The judgment of the district court will be reversed, and the cause remanded, with direction to the court below to overrule the demurrer to the first cause of action, and for further proceedings in accordance with the views herein expressed.

All the Justices concurring.