187 Mo. App. 344 | Mo. Ct. App. | 1915
Plaintiff sued for $5000 as damages for personal injuries sustained while employed as a shoveler in defendant’s mine.
At the close of plaintiff’s evidence in chief, defendant asked and the court refused an instruction in the nature of a demurrer to the evidence. It was renewed at the close of all the evidence, at which time, according to the bill of exceptions, it was given; whereupon, the bill of exceptions recites, plaintiff took a nonsuit with leave to move to set the same aside. The appeal is taken by plaintiff from an order overruling his motion to set aside the nonsuit.
The petition charged that it was a part of plaintiff’s duty in defendant’s mine to shovel dirt, ore and rock into a car or tub and push the same to the shaft; that it was defendant’s duty to furnish plaintiff a reasonably safe place in which to perform his duties, and to keep the drifts and shafts in a reasonably safe condition, and to inspect and trim the walls and roof of said drifts and remove therefrom all loose earth, rock and boulders; that defendant, wholly neglecting and disregarding its duties in that behalf, did, on the 5th day of October, 1912, order and direct the plaintiff to work as a shoveler in the drift of said mine, and assured the plaintiff that said drift was a safe place to work, and that plaintiff could safely enter and work therein, and that plaintiff relying upon the assurances of the agents and servants of the defendant that said drift was a safe place to work, did enter said drift
The plaintiff was a farmer, but had worked at mining three or four weeks the winter before. He went to work for defendant on Friday and was injured about nine o’clock Saturday morning. He inquired of the ground boss, who employed him, as to the safety of the mine “because he was scared,” and was told it was “safe as any.” The following are excerpts from plaintiff’s testimony, this being considered the fairest way of stating the case made by him:
“I just stooped over; 1 cleaned the boulders off of the stope just as clean as I could get them on the stope there; and there was a little boulder on the boards • and I stooped over with my head down and my hat ;'on, my mining hat, and my lamp on my hat; and I stooped over and my light went out and also this rock hit my hand.” . . . “I heard the air kind o’ whiz, like; the rock never came from the stope all the way; it came from the slope part of the way, I will admit; it came from above until it hit the stope at the head of the stope; if it hadn’t hit the stope it would have crushed my hand plumb off.” . . . “There was a light on my hat; as near as I could tell, the wind from
Plaintiff’s witness Hughes testified that the roof of this mine was trimmed about three months before plaintiff commenced working there and that he did not know of it being inspected after that and he had worked there all the time.
The ground foreman at the time testified for defendant that they never made any inspection Of the roof from the time they trimmed it three or four months before this accident, and that part of the roof is high and hard to get to. Also, that he told plaintiff on employing him that it was safe because he had never seen .anything fall in there.
The foregoing is a statement of the case in the manner most favorable to the plaintiff. The rules as to the rights of a party when the case turns on the propriety of the action of the trial court in giving a peremptory instruction against him are stated by us in the case of Dyer v. Cowden, 168 Mo. App. l. c. 657-659, 154 S. W. 156, where numerous authorities are cited, and are so well known that they need not again be stated.
Plaintiff testified, as we have said, that it was about eighty feet from the bottom to the top of the stope and that one couldn’t see the top unless he had a light and went up there. There was no one in the vicinity of plaintiff except Ed Peck, who testified, and Daddy Adams, who was not a witness. The plaintiff went into his place of work with assurances of its safety and there was no way for him to see through the darkness and ascertain that it was a dangerous place. It' stands admitted in the record because testified to by defendant’s witness that this roof had not been trimmed or inspected for three or four months prior to plaintiff’s injury.- The plaintiff testified that the rock came from above and hit the stope and bounced so as to fall on his hand. If there had been a score of witnesses in this dungeon in plaintiff’s immediate vicinity, it is highly probable that plaintiff could not have made his case any stronger except in the number of witnesses. It is true, negli
This is a case that does not admit of exhaustive testimony because of the fact that the roof could not be seen and the fact that only two workmen besides plaintiff seem to have been near the place where the. injury occurred. One of them (Adams), was between this place and the shaft. The other (Peck), according to plaintiff’s testimony, must have been very near and yet his version of the occurrence was not helpful in arriving at the true facts. The defendant introduced no evidence to support its theory that the rock rolled down the stope as a natural result of the shoveling plaintiff had been doing at the base of the stope, except the evidence to the effect that plaintiff had told defendant’s witnesses the rock came from the stope, and such evidence does not justify the trial court in saying as a matter of law that plaintiff failed to produce substantial evidence of the existence of the negligence charged. [Cartlich v. Street Ry. Co., 129 Mo. App. l. c. 724-728, 108 S. W. 584.] As in the- case just cited, the physical facts and circumstances surrounding the injury very strongly corroborate plaintiff’s testimony. It is a matter of common knowledge that in caverns of this kind where shots are being fired and where the roof is of
Respondent insists, however, that there is nothing for this court to review for the reason that plaintiff took a voluntary non-suit from which no appeal lies. This, because the record fails to disclose that plaintiff excepted to the action of the court in giving the peremptory instruction to return a verdict for the defendant, and therefore, the nonsuit having been voluntarily taken, the plaintiff could not appeal from the order of the trial court refusing to set the same aside. In this, respondent is sustained by the rulings of the Supreme Court and the Courts of Appeals of this State. Therefore, without any expression as to what the views of this court may be on the subject, we follow the last controlling decision of the Supreme Court. In the case of Lewis v. Center Creek Mining Co., 199 Mo. 463, 97 S. W. 938, the court said (l. c. 469): “Suppose that the court had in fact given the instruction and the record faffed, as it does now, to show an exception, could it be said in the face of our holdings for many years, that the instruction or the questions raised thereby could be here for review? We think not.” [See, also: Green v. Terminal R. R. Assn., 211 Mo. l. c. 34, 109 S. W. 715; Arnold v. Aetna Life Ins. Co., 167
The fact that the appellant in his printed' abstract designates the nonsuit as “voluntary” would not make it such if the facts disclosed that it was in truth involuntary. Courts look to substance rather than form.
Appellant files a motion in this court for a rule on the stenographer who took the notes in the trial court to supply the omitted record which he says shows that an exception was in fact saved. Appellant misconstrues what the “record” is in this court. The “record” of the case as to all those matters that must be in the bill of exceptions is made for the appellate court when the trial judge certifies that the transcript of the evidence and proceedings at the trial, made up by the stenographer and agreed on by the attorneys, is correct; by his signature he makes the record as to that for the first time in the case for the appellate court. Should the printed abstract fail to show something which is shown by the bill of exceptions on file, then we can act on a motion suggesting a diminution of the record; but the original bill of exceptions on file cannot be amended in the appellate court. [Holt v. Simmons, 14 Mo. App. 450.] As to this both the majority and dissenting opinions in the case just cited agree. [See, also: West v. Burney, 71 Mo. App. l. c. 273, 274; Crossland v. Admire, 149 Mo. l. c. 655, 51 S. W. 463.]
Appellant, however, raises the point — and we agree with him as to the rule — that where a plaintiff presents correct instructions to the trial court going to the vitals of his case which should be given by the court but are refused, to which refusal he does except and makes his record show the exception, the action
The judgment of the trial court refusing to set aside plaintiff’s nonsuit is affirmed.