88 Mo. 68 | Mo. | 1885
-This is an action begun by plaintiff against defendant for damages, on account of the death of her husband, Edward L. Spiva, which, as was admitted upon the triql, was caused by an injury received by him in falling down the shaft at defendant’s Goal mine, said Spiva being at the 'time in defendant’s employ thereat. A demurrer to the evidence was sustained by the trial court, and the propriety of this ruling is the main question before ns. The petition charged, among other things, that the cage was lowered to the bottom of the shaft without the knowledge of Spiva, upon the order of defendant’s foreman, and contrary to the usual custom of defendant, while Spiva was dumping the coal from the box which had just been taken from the cage, and that, in attempting to put the coal box back onto the cage he stepped into the shaft. It is perhaps sufficient to say of this allegation that there is no evidence that the foreman gave any order whatever, or even that he was present, nor does it show what defendant’s customary way of lowering said cage was, or that it was managed or lowered in any different way upon this occasion, through the direction or procurement of defendant or its other servants. The mere fact of his falling down the shaft is the only evidence to show that the cage was lowered to the bottom of the shaft without his knowledge.
The petition, however, is substantially grounded upon “an act providing for the health and safety of persons in coal mines, and providing for the inspection of the same.” See Acts of 1881, p. 168. Section eight
The defendant had not complied with the above and foregoing provisions of the statute in regard to gates, and would be clearly liable for any injury occasioned thereby to one coming within its provisions, and in case of death the right of action would accrue under the statute to the widow of the person killed, his lineal heirs or adopted children. The evidence also shows, however, that Spiva was employed to work not in the coal mine, -but on top of the ground and at the entrance to the shaft, and that he accepted such employment and remained engaged therein for sixteen months previous to the date of injury, with full knowledge of the condition of things. There were no gates there when he began work. The witness, Richard Bowen, was the pit boss at the time the accident happened, and was mine inspector for TIenry county, at' the date of the trial. With the exception of the plaintiff, who testified in her own behalf, and whose testimony was soleiy in relation to the marriage, and health, and earnings of her-husband.
Whatever danger may have been thus occasioned, by the absence of the gates, was- not only open and obvious, but was actually known to said Spiva, and numerous authorities hold in such cases, that one who thus voluntarily assumes the risk, thereby waives the provisions of the statute enacted for his benefit. But we do not base the decision and result upon that ground, as the absence of the fences and gates did not, under the evidence, cause, or contribute to cause the injury. The statute gives the right of action for injuries occasioned by a wilful violation, or wilful failure to comply with its requirements. The mere co-presence and co-existence of the defendant’s default, and an injury to the husband, with an entire absence of causal connection between them is not sufficient, for the law would regard the injury, not attributed by the evidence to the defendant’s omission of duty as a procuring cause, as the result of accident or misfortune. In this case the proof is, we think, plain, that in the long, frequent and constant daily performance of his duties at the top of the shaft, and from his monotonous familiarity with them, Spiva was, when injured, discharging, them in a mechanical fashion, without much conscious attention to what he was doing, or the condition of things around him at the time. If this inference does not logically and inevitably follow, then the most that-can be said of plaintiff’s evi
The witness, Bowen, further testified: “Spiva had been in the employ of the defendant a year or more, about fifteen or sixteen months. His duties were on top, to dump the coal and stock, and send down props, and whatever he might be called on to do. When the cage came to the top it was fastened by iron (fangs) which caught the cage, and had to be unloosed by the dumper before the cage could descend. When the cage came to the top of the shaft it filled in the entire top of the shaft, and could readily and easily be seen by any one looking to see it. A person, working around the shaft could readily see, if he looked, whether the cage was lowered or not. If "he looked he could see. There was nothing to prevent his seeing that the cage was lowered, if he had looked. The accident occurred in the daytime, in the afternoon about two or three o’clock.” We thus see that when the cage came to the top, it fastened mechanically by iron fangs, but could not descend until these iron fangs were unloosed by Spiva, who was the dumper, and the cage was in this respect under his control. After the accident happened the cage was found at the bottom of the shaft, with Spiva lying upon it and the coal box lying upon him. There is no allegation or evidence that the iron fangs that secured the cage were defective, or were unfastened by any one else, and indeed no one is shown to have been present at the time except Spiva himself. The evidence shows nothing in the circumstance, time, place, or other conditions done or suffered by defendant, or otherwise occurring, to distract his attention, or to deceive or throw him off his guard. The evidence, we think, overcomes all presumptions of due care on Spiva’s part, and makes his want thereof the proximate and direct cause of this distressing accident. The duties imposed by the statute were for the health and safety of those engaged in mining labor
There is one further matter, urgently presented by appellant, which we will notice briefly. Upon the trial the court sustained objections to the following questions asked the witness by plaintiff’s attorney: “What, in your judgment as an experienced miner, is a safe and prudent manner of protecting or covering the top of a shaft ? ” “Was the top of the shaft at the time of defendant covered or protected in a safe and prudent manner ? ” The act in question is a legislative determination, to the extent of its provisions, of the matter contained in the questions, and in any action thereon, the only proper inquiry is whether its requirements have been, in thac respect, complied with, and if not, whether the injury complained of was thereby occasioned. In this case there is no pretense that the fencing gates had been provided, and upon this branch of the evidence plaintiff’s case was complete, and the porof offered, if com
