126 Mo. App. 94 | Mo. Ct. App. | 1907
Action of a servant against his master to recover damages for personal injuries alleged to have been caused by the master’s negligence. Judgment was for plaintiff in the sum of two thousand three hundred and seventy-five dollars, and the cause is before us on the appeal of defendant.
At the time of the injury, Monday, May 24, 1903, defendant was operating a lead and zinc mine, and plaintiff was employed therein as a shoveler. Prom the wall of a long drift which was about twenty feet wide and twenty-five or thirty feet in its perpendicular dimension, defendant had begun to cut a smaller drift, the roof of which was sixteen or eighteen feet above the floor of the main drift. On Saturday preceding the injury, blasting had been done in the new drift which had detached a volume of material for shovelers to remove and had so shaken the roof that it was necessary to guard the laborers employed on the floor against injury from the falling of material which remained attached to the roof, but which was so loosened that it was likely to fall. The method adopted by defendant to remove this danger was'to “trim” the roof, which means that workmen were to remove the loosened material with pick and spoon. Plaintiff was one of the men ordered by the foreman to do this work. He objected on account of Ms inexperience, bnt was told by the foreman that it could be done in safety, if he would clear the roof ahead of him and not stand, while working, under an uncleared place. Thus assured, plaintiff began work at the entrance to the small drift and, owing to the height of the ceiling, at first, was compelled to use a ladder, but as the drift penetrated the wall a short distance (about fourteen feet) and the roof and floor rapidly converged,
The issues of fact presented by the pleadings and submitted to the jury are thus defined in the first instruction given at the request of plaintiff: “If you find and believe from the evidence in this case that on the —• day of May, 1903, the defendant, R. E. Bruner with other persons was engaged in mining for lead and zinc in Jasper county, Missouri, under the name of the B. & H. Mining Company and that on said day the plaintiff was employed by said company to work in its said mine, then it was defendant’s duty to use ordinary care to furnish plaintiff a reasonably safe place to work in said mine, having due regard to the kind, character and nature of the business in which they were engaged and the work which the plaintiff was employed to perform; and if you further find from the evidence that on said — day of May, 1903, the defendant, R. E. Bruner, and such other persons as were associated with him in the operaton of said mine, had carelessly and negligently permitted the roof of one of the drifts in said mine to become dangerous and an unsafe place in which to work, and if you further believe from the evidence that plaintiff was employed by defendants to work in the capacity of shoveler and that his duties under his employment were to shovel dirt and that defendant’s ground boss ordered and directed plaintiff to go to work on the roof of said drift and assist in trimming the roof thereof
At the conclusion of the evidence, defendant offered an instruction in the nature of a demurrer to the evidence, but the court properly refused to give it, and as this ruling is not now made a subject of complaint, we will not discuss the propriety of sending the case to the jury, but will dispose of the errors assigned in the order of their presentation.
The first question relates to the admission of evidence offered by plaintiff over the objection of defend
“Q. The question is, what effect air has on the roof, a roof like this little drift has? A. It makes it hard.
“Q. What does it make it do ? A. Makes it crumble off.
“Q. In order to prevent that, how would you do it? A. Timber it.
“Counsel for defendant: I object, and move the answer be stricken out, as incompetent, irrelevant and immaterial, calling for a conclusion of the witness.
“The Court: Probably you had better put your question in a little broader shape so as not to —
“Q. Mr. Niverson, in order to protect the roof of this little drift and keep it from crumbling and falling, what was necessary to do in the way of timbemg, if anything?
“Counsel for defendant: I object for the same reason ; also because leading and suggestive.
“The Court: I think you ought to strike out “timbering,” etc.
“Counsel for defendant:- I object to it for the reasons already stated; improperly calls for an expression of the opinion or conclusion of the witness and incompetent and irrelevant.
“The Court: I will overrule that objection. I think he can state what is proper to be done.
“Q. I will put in another question.
“Counsel for defendant: I except.
“Q. In order to protect the mine and make it safe for men to work in, what would be necessary to do to prevent the roof of that little drift from dropping and slacking when the air came in contact with the soapstone?
“Counsel for defendant: The same objection.
*101 “The Court: Overruled. You can answer that question. . -
“Counsel for defendant: We except.
“A. The way to mine that is to timber it up, then it wouldn’t air slack and in driving it ahead put your string poles and wood up over it and keep everything from dropping on the men.
“Counsel for defendant: Same objection.
“The Court: Same ruling.
“Counsel for defendant: We except.
“Q. What do you do? A. To do that timbering, put up your poles and put the cap on it.
“Q. What was the proper way to do it in that drift?
“Counsel for defendant: Same objection.
“The Court: Same ruling.
“A. That would be the proper way to do, put up two sets of timbers and wood up and key up to the roof, run your stringer poles and cut out for another set of timbers and put up and timber up to your stringer poles, and make it safe that way and the only way it could be made safe.
“Counsel for defendant: I move that be stricken out.
“The Court: The last part of the answer will be stricken out. I don’t think he ought to volunteer.
“Q. State whether or not that would make the drift safe for the men to work under.
“Counsel for defendant: Same objection.
“Q. Certainly it would.
“The Court: Same ruling. That wasn’t the part I was striking out. It was ‘the only way it could be made safe.’
“Counsel for plaintiff: I don’t care anything about that.
“Counsel for defendant: We except.’"*
We give sanction to the argument that defendant
In order to support his contention that defendant did not exercise reasonable care, it was proper for plaintiff to show by expert testimony the usual method followed in such cases and that defendant rejected such method for one less safe. Reasonably construed, the testimony under consideration deals with these facts within the scope of the principles announced and does not attempt to convert the individual opinion of the witness into a standard by which the conduct of defend
In asking what was necessary to be done “in order to protect the mine and make it- safe for men to work in,” counsel for plaintiff inaccurately referred to the duty of a master to his servant which does not impose on him the task of providing a safe place, but only that of employing reasonable care to provide one reasonably safe, but in the light of the context and of the instructions which properly defined the rule, we cannot conceive that the jury could have been misled. It is apparent that neither court nor counsel entertained a remote thought of enlarging the scope of the master’s duty beyond that fixed by the substantive law. It would be a strained conclusion, indeed, should we say that the jury might have been led by this question into the erroneous belief that defendant was burdened with the absolute duty of providing the servant a safe place in which to work. Error, to constitute a ground of reversal, must be prejudicial, and prejudice will not be presmed where it clearly appears from the whole record that no- one of average intelligence could have been misled by the error.
The second error claimed by defendant relates to the instruction given at the instance of plaintiff on the measure of damages. Included in the elements of damage is “loss of earning capacity, if any, which you believe from the evidence he has sustained or will necessarily sustain in the future as a direct result of the injuries received as shown by the evidence.” It is urged there is no evidence to support damages of this nature, but we think otherwise. There is substantial evidence tending to show a physical impairment from the injury which, in a measure, incapacitates plaintiff from following his vocation and thereby results in a loss of earning
Finally, it is argued by 'defendant that the first in-instruction given on behalf of plaintiff is erroneous, but we find it to be free from just criticism. Plaintiff’s cause of action is founded not only on the negligent act of defendant in failing to exercise reasonable care to provide him a reasonably safe place in which to work, but also of the negligent act of ordering an inexperienced servant to work in a place which he knew, or by the exercise of ordinary care should have known, was imminently dangerous, without informing the servant of the extent of the risk he was directed to encounter. Evidence was adduced which made each of these acts an issue of fact, and it was proper to submit both issues to the jury.
The judgment is affirmed.