75 Mo. App. 177 | Mo. Ct. App. | 1898
The roadman Johnson testified that the pit boss directed him to go into the entry and clear out the rocks that had fallen from the roof there, and the next night after he had done this he (Johnson) told the pit boss that he believed “that'place ought to be strapped,” and that the latter said: “There is no use to strap any more. Let it all fall out until it gets high enough and wide enough to take big timbers and we will timber it then with big timbers.” This witness further testified that some time before the accident he said to the pit boss: “Let’s go in there and timber up this dangerous place, and he said: ‘No, the company is kicking on too much expense we have now.’ He told me he had no timbers and they refused timbers and expense.” Notwithstanding this the entry was continuously used by the miners up to the time of the accident. It seems the pit boss himself passed through it as often as twice
There can be .no question in the present case that the defendant was fully aware of the defective condition of the entry for at least two weeks before the happening of the accident by which the plaintiff’s husband lost his life. It is in effect conceded that the defendant, in refusing to repair the defect in the entry and to render it reasonably safe by propping up the roof thereof with
Was it the duty of plaintiff’s husband to abandon his contract of employment because of the breach of duty on the part of the defendant! Mere knowledge that the entry was defective and that risk was to be incurred in its use was not, as a matter of law, sufficient to defeat the plaintiff’s action, if the danger was not such as to threaten immediate injury, or if it was reasonable to suppose the entry might be safely used by the exercise of care. Stoddard v. R’y, 65 Mo. 514; Delvin v. Ry, 87 Mo. 545; Huhn v. R’y, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 364; O’Mellia v. R’y, 115 Mo. 205; Holloran v. I. & F. Co., 133 Mo. 470. There is no ground for claiming that the entry was so glaringly defective and unsafe that a man of common prudence would not have used it, or that it was so dangerous as to threaten immediate injury. Even though the entry was dangerous, yet the plaintiff’s husband knew that not only the defendant’s pit boss but a great number of the defendant’s other workmen, with an equal knowledge of its dangerous condition, had safely passed and were daily passing through it, and hence a man of common prudence might well have concluded that though it was more than ordinarily dangerous that he could, in like manner, continue to pass through it in safety until the necessary repairs should be made. It seems that the pit boss expected
The question whether or not continuing in the service of defendant after knowledge of the danger arising from the defective and unsafe condition of the entry should defeat the plaintiff’s action, was properly a question of contributory negligence and to be determined by the rules in such cases. In Shearman and Redfield on Negligence [5 Ed.], sections 211 and 212, it is said: “The true rule, as nearly as can be stated, is that a servant can recover for an injury suffered from defects due to the master’s fault, of which he had notice, if, under all the circumstances, a servant of ordinary prudence, acting with such prudence, would, under similar circumstances, have continued the same work under the samé risk. * * * The test of prudence in these cases * * * is that which a prudent servant of the same class using such prudence and judgment, as such persons usually possess but no more, might reasonably be expected to apply to the particular ease.”
This statement of the authors just named was approvingly quoted in Hamilton v. Mining Co., 108 Mo. loc. cit. 376. In a case of this kind mere knowledge of the defect will not defeat a recovery. Negligence on the part of the servant, in such case, does not necessarily arise from his knowledge of the defect, but it is a question of fact to be determined by the jury from such knowledge and the other circumstances in evidence. Bradly v. R’y, 138 Mo. 305; Doyle v. Trust Co., ante; Huhn v. R’y, 92 Mo. 440; Mahaney
It necessarily follows from the foregoing considerations that the trial court did not err in its action refusing defendant’s instruction in the nature of a demurrer to the evidence.
Four instructions were given by the court for the plaintiff and a like number for the defendant. These, when taken together, fully and fairly presented for the consideration of the jury every conceivable phase of the case. Those given for the defendant were especially favorable to its side of the case. The defense of contributory negligence was clearly brought to the attention of the jury by the defendant’s several instructions.
The plaintiff’s fourth instruction as to the measure of damages in-the light of Parsons v. R’y, 94 Mo. 286 and Schwab v. R’y, 104 Mo. 74, is unobjectionable. The amount of the damages assessed by the jury was only $1,200, and this amount was, we think, under the evidence, quite moderate.
No reason is seen why any other evidence offered by plaintiff was improperly admitted. Certainly the colloquy between the pit boss and the road man, hereinbefore referred to,' was clearly admissible to prove defendant’s knowledge of the defect and the refusal to repair or furnish the necessary timbers for
It results that the judgment must be affirmed. It is so ordered with the concurrence of all.