160 Mo. App. 99 | Mo. Ct. App. | 1911
This was an action to recover damages for the death of Joseph C. Morgan who lost his life in the mine of the defendant on the 27th day of October, 1900'. The petition on which recovery was sought is as follows: (Formal parts omitted.)
“Plaintiff for cause of action states that he is the duly appointed, qualified and acting administrator of the estate of Joseph C. Morgan, deceased, having been appointed by the probate court of Jasper county, Missouri.
“Plaintiff further states that defendant is and was at all the times herein mentioned, a corporation, organized and existing under the laws of the State of Mis
“Plaintiff further states that it was the duty of defendant to furnish its employees with a reasonably safe place in which to work, with reasonably safe tools and appliances, and reasonably safe machinery and' appliances with which to lower its employees into said mine.
“Plaintiff further states that defendant used in its mine work animals which were lowered into its said mine through a shaft of said mine by means of an open-top cage, made of about 3x6 timbers and f which was about 6x3x6 feet,.and attached to a wire cable attached to hoisting machinery, which cable was what is known as a dead cable, that is, non-twisting cable; that on the day preceding the accident herein complained of, defendant carelessly and negligently replaced said cable with what is known as a live cable, that is, a twisting cable, which would cause said cage, and which did, while being lowered into the mine, to whirl and to strike the walls and sides of the shaft of said mine and to strike a column pipe in said shaft, running from the top to the bottom of the shaft.
“Plaintiff further states that defendant carelessly and negligently failed to take the twist out of said cable, as it was its duty so to do, before attempting to use said cable in lowering said cage and said work animals, and deceased into said mine.
“Plaintiff further states that defendant carelessly and negligently failed and omitted to equip and provide guides or rails or other appliances to hold said cage in position and to prevent it from tilting, whirling and striking the walls and sides of said shaft and
“Plaintiff further states that the deceased, Joseph 0. Morgan, was, on the 27h day of October, 1909, in the employ of defendant at its said mine; that it was a part of the duties of deceased to stand on the top of said cage, while its work animals were being lowered into said mine, and to aid and assist in the lowering of said cage and animals into said mine.
“Plaintiff further states that, on the 27th day of October, deceased, while in the employ of defendant, was assisting and aiding in the lowering* of said cage and one of defendant’s work animals into said mine, and while standing on the top of said cage, as he was required to do, without any fault, carelessness or negligence on his part, said cage-, by reason of the ‘twist’ contained in the cable attached to said cage, was. caused to whirl and tilt and to strike the sides of the walls of said shaft and to strike the column pipe in said shaft, which tilting and whirling of said cage and the striking of said cage against the sides and walls of said shaft and said column pipe threw deceased from said cage to the bottom of said shaft, a distance of 160' feet, killing him instantly.
“Plaintiff further states that if defendant had, before attempting to lower the deceased into its said mine by means of said cage and cable, taken the twist out of said cable, or, if defendant had equipped and provided guides, rails or other proper appliances to guide and hold said cage in position, said cage would not have struck the side and walls of said shaft and the column pipe in said shaft and said accident would not have occurred.
“Plaintiff further states that the death of deceased was caused and brought about by reason of the carelessness and negligence of defendant in furnishing and supplying said cage with said cable without first having the ‘twist’ taken out, and further by rea
“Plaintiff further states that defendant had knowledge, or could have had knowledge by the exercise of ordinary care and prudence, of the dangerous .condition of its machinery and appliances aforesaid, and of the danger to which deceased was exposed in being lowered into said mine with said machinery and. applances.
“Pliantiff further states that deceased left surviving him no wife, child or children, natural born or adopted; that at the time of his death he was twenty-one years of age.
“Plaintiff further states that, by reason of the premises, the estate of Joseph C. Morgan, deceased, has suffered damages in the sum of seventy-five hundred dollars, for which judgment is prayed.”
Defendant pleaded, first, a general denial; second, contributory negligence of deceased in that it was the duty of deceased to stand on top of the cage to aid and assist in lowering the cage and animals into the mine, and to prevent the cage from bumping, and that although deceased knew that a new cable had been put on the night before which would cause more bumping than the old one, he negligently and carelessly failed to prevent, but permitted, the bumping, and that he was familiar with the work and the danger and the liability of the cage to bump, and that his own lack of attention to his duties and careless conduct permitted the bumping; and third, that deceased’s injuries were the result of the ordinary risks of the-employment.
The reply was a general denial
Deceased had been in defendant’s employ about two months. The evidence tended to show that at the time of his fatal accident and for some time prior thereto his duties had been to ride on top of a cage by which work animals were lowered through a shaft, into the mine, and to guide said cage with his hand whilst, it was being lowered and prevent it from bumping. The shaft was about 230 feet, and was laced or cribbed down about 130’ feet. The cage was something like six feet high, three feet wide, and six feet long, and was constructed of 2x6 inch timbers. There were iron straps coming up from each corner of the cage, with ears, and there was a ring in the center they all went in, and this ring hooked onto the cable. Deceased stood on top of this cage on a 2x6 -inch plank, turned edgewise. The shaft was 5x6% feet within the cribbing, but was larger below the cribbing, so much so that a man standing on top of the cage as it was descending into the mine could not reach out and touch the walls of the shaft with his hand — as one witness expressed it, “the shaft was laced up so it was just one size down to about 130 feet, and after that it was like letting a can or tub down in the center of this room; there was nothing there to touch it on; after you got below the cribbing or lacing you could touch nothing,— only there were two pump columns and I think a steam line on the .north side of the shaft which you could touch part of the way down this shaft. These column pipes extended from the top of the ground down to within fourteen or fifteen feet of the bottom of the shaft. There were no guides or rails to guide the cage in the shaft after it passed below the lacing or crib
W. H. Frickleton who stated, that he had been in the business of supplying machinery and wire cables for ten years, testified concerning the cable, in part, as follows: “Q. Explain just how this crucible steel cable or rotating cable,, as it is sometimes called, is made? A. Well, the wires are twisted and make a five-eighths crucible steel cable; it is composed of six strands with nineteen wires to each strand, and it is all twisted one way, and the non-rotating cable is made two cables one over the other, one is twisted this way (indicating) and the other is twisted this way (indicating) so that in hoisting they are bound to each pull against the other; prevents it from twisting around. In other words they call it a non-rotating cable. ’ ’ John Rutherford, the ground foreman, testified that the old cable (the one taken off the day preceding the accident) was a dead cable and that “it wouldn’t twist.” Q. “What effect would a dead cable have on the cage
Basil Surface, who was on the cage with deceased at the time of the accident, testified, in part, as follows: “I don’t know exactly how deep the shaft is, but it is cribbed and laced about half way down . . . I saw Morgan when I got down to the bottom; he was dead. I think there were five pipes in this shaft; they were in the north part mostly. Q. After you got below the lacing, could you reach out with your hand and touch the wall-of the shaft? A. Yes, sir. Q. How far did you have to reach? A. Some places were a little bigger than others; some places couldn’t hardly reach it. . . . Q. What side was Morgan on? A. On the north side and facing south. Q. You say these column pipes were where? A. In the north end, I think the one the cage bumped on was nearly right in the northwest corner. These pipes were from two-inch up to eight-inch. Q. Where was the big eight-inch pipe? A. In the northwest corner. . . . Q. How long had you been around the mouth of this mine that morning before you and Morgan started down? A. Twenty-five minutes, I guess. Q. Anyone else around there? A. The rest of the miners were all there. Q. Had some of them gone down in the can prior to the time you started down? A. Yes, sir. Q. How many had gone down in the can? A. All down, I think, but two.” Cross-examination: “I was Morgan’s assistant, and it was my duty to ride with Morgan on top of the cage and to take the mule down and bring it out, and this was a daily occurrence. Both of
The plaintiff testified that he is a brother of deceased and administrator of deceased’s estate; that deceased was twenty-one years of age, was a single man, and had no children, natural born or adopted.
There was also evidence tending to show that the change of cables was made as a precaution for the safety of the men, it having been reported to the superintendent that the old cable was becoming unsafe.
It thus appears from the evidence in- this case that the deceased had been employed in the mine shaft of the defendant for some time prior to the fatal accident and that one of his duties had been to ride on top of the mule cage in which work animals were lowered into the mine; that he knew that the cable in use at the time of the accident was a new one and that there was the more reason to expect bumping and whirling from this cable than from the old one; that he himself asked the hoisterman to lower them a little slower on account of the new cable, and warned his
In this case it appears that whatever defects and dangers there were from the use of the cage and from the twisting of the cable and other appliances that were used, were patent and obvious, and that the deceased was fully advised of the dangers of working-under such defective conditions and with the appliances furnished.
In many jurisdictions it is held that the employee assumes the known or obvious dangers incident to the employment though such dangers arise from the master’s negligence, but the courts of Missouri have taken a position which affords greater protection to the servant. It is the duty of the master to furnish to the servant a place and appliances reasonably safe under the circumstances of the employment to do the work required of the servant. On the other hand, it is the duty of the servant to exercise ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly or heedlessly to the work when there is danger. He assumes the risk of injury from the ordinary dangers of the employment and from such dangers as are known to him or discoverable by the exercise of ordinary care on his part. [Roberts v. Telephone Co., 166 Mo. l. c. 378, 379, 66 S. W. 155; Thomas v. Railway Co., 109 Mo. l. c. 199, 18 S. W. 980; Price v. Railroad, 77 Mo. 508; Steinhauser v. Spraul, 127 Mo. l. c. 562, 28 S. W. 620, 30 S. W. 102; Nugent v. Kauffman Milling Co., 131 Mo. l. c. 245, 33 S. W.
The question therefore arises whether, under the evidence in this case, the demurrer should have been sustained as to the master’s negligence in furnishing a twisting cable or in failing to furnish sufficient guides or rails to hold the cage in position to prevent it from striking the sides of the shaft or the column pipe.
The definitions of negligence are more numerous than appear under any other title in the scope of the law. The definition given by an eminent authority, Judge Cooley, is: “The failure to observe for the protection of another person that degree of precaution and vigilance which the circumstances justly demand whereby such other person suffers injury.”
The duty of the master is to exercise reasonable care, having regard to the hazards of the service, in furnishing his servant with reasonably safe place in which, and reasonably safe appliances with which, to work. This duty is a continuous and non-delagable one, and calls upon the master to use all reasonable
In considering a demurrer to evidence, care must be taken not to infringe upon the constitutional right of trial by jury; and, when the undisputed evidence in the record is susceptible of two inferences, one consistent with ordinary care, and the other tending to show negligence, such evidence, leaving a ground for difference between fair-minded men as to whether or not negligence existed (that is, if the evidence is susceptible of two inferences, one consistent with ordinary care, and the other tending to show negligence), the question is one of fact for the jury. This is the more apparent when it is considered that negligence is not a fact susceptible of direct proof but is an inference deducible from the evidence, and its existence may be in issue though the facts on which it is based are not in dispute. It is also elementary law in this State that a demurrer admits every fact of the plaintiff’s case to be true which the evidence tends to prove, whether the evidence be direct or indirect, as well as all reasonable deductions that are to be ■ drawn therefrom; and before a court can take a case from the jury and consider the question of negligence as a question of law, the facts must not only be undisputed, and the credibility of witnesses
If the jury should find that the master was guilty of negligence, the question would then arise at the trial as to the respondent’s defense of contributory negligence. Mere knowledge on the part of deceased that there was danger in working with the appliances
The respondent contends that there was no proof whatever of substantial damages and that therefore the demurrer was properly sustained. The evidence on this question shows that the deceased left no wife, child or children, surviving him, but that the plaintiff was his brother, and that at the time of deceased’s death he was unmarried and was over twenty-one years of age. After plaintiff had shown that deceased was killed by reason- of the breach of the duty that defendant owed him, in the absence of evidence showing the probable amount deceased would have accumulated during his expectancy in life, the plaintiff was at least entitled to a judgment for nominal damages.
It follows from what has been said that the judgment herein must be reversed and the cause remanded for a new trial, and it is so ordered.