188 Mo. 260 | Mo. | 1905
This is an action for personal injuries, begun in Jackson County Circuit Court, the accident out of which the injuries arose occurred at Leavenworth, Kansas, on July 9, 1894. The defendant company at the time of the accident, and for years prior thereto, was the owner of and operated the Riverside coal mine located at Leavenworth, Kansas. The plaintiff was injured in said mine on July 9, 1894, by the falling of the roof of the mining room in which the plaintiff was employed. His injuries were to the lower part of the back and spinal column, which resulted in paralysis of his lower limbs. He was forty years of age at the time of the accident.
The plaintiff was a native' of Poland, but had resided for a number of years prior to the accident, and
On the part of the defendant it is insisted that he was a miner of extended experience and understood Ms duties and the dangers of Ms occupation. On the part of the plaintiff it is contended that Ms mentality was very slight and that he had never become a skillful miner. There is little or nothing to show that he was other than a man of ordinary capacity and of sufficient intelligence to understand the nature and character of Ms duties and the dangers of his occupation. He was able to speak and understand the English language fairly well.
The amended petition, on which the cause was tried, alleged that the defendant was a corporation under the laws of Missouri, with its principal offices in Kansas City, and was the owner of the said Riverside coal mine in or near Leavenworth, Kansas; that the various strata, rock, earth and slate, constituting the-roof of the said mine, was so situated and formed that in order to render employment in said mine reasonably safe it was at all times necessary that said roof should be supported by numerous props or braces, and that unless so supported large portions of rock, earth and slate were liable to be precipitated upon the workmen •engaged therein. That it was, and for a long time had been the custom of the defendant to furnish props or braces to the miners, and that it was the duty of the defendant to furnish said props or braces in sufficient numbers, and to see to it that the roof or top of said mine was properly supported, and prior to the ninth day of July, 1894, the plaintiff was, and had been in
Plaintiff further states that, when he notified the'' defendant of the dangerous condition of said mine, the said defendant assured him, through its foreruan, who was the authorized representative and vice-principal of defendant, in charge of the work in said mine, and a person skilled in the business of mining, that' he could enter said mine and work therein in perfect safety, and ordered the plaintiff to enter said mine and to proceed with his labors therein, assuring plaintiff that it was perfectly safe for him so to do, and that by reason of
The plaintiff further states that all of said injuries were occasioned by the carelessness and negligence of the defendant in failing to furnish to plaintiff a sufficient number of props or braces to support the roof of said mine, to-wit, thirty in number, and in failing to perform its duty to furnish said props, and in failing to conform to the custom and usage to furnish props in said mine, and in carelessly and negligently failing to
Plaintiff states that by reason of said injuries occasioned by the carelessness and negligence of the defendant, as above set forth, he has been injured as aforesaid, and that he has been damaged in the sum of $25,000, for which he prays judgment, together with his costs.
The answer was a general denial and five other special defenses.
First. That on October 15, 1894, the plaintiff voluntarily made, executed and delivered, for a valuable consideration, a release, acquittance and discharge, whereby he released the defendant of and from all claims and demands of every kind for the injury received by .him in said mine on July 9, 1894.
Second. An assumption of the risks from the falling of the roof in said mine, plaintiff being at the time an old experienced coal miner and well understanding the perils thereof.
Third. A plea of contributory negligence in taking down and removing one of the props which supported the roof of his room.
Fourth. That the negligence, if any, which caused
Fifth. A plea of the Statute of Limitations of the State of Kansas, and section 6779a, Laws 1899, p. 300, approved May 24, 1899, whereby, whenever a cause of action has been fully barred by the laws of the State in which it originated, said bar shall be a complete defense for any action brought thereon in any of the courts of this State.
The reply generally and specifically put in issue all of these several defenses.
The facts developed on the trial that the defendant’s mine was about six hundred feet deep, and was entered by means of a deep shaft through which the miners were let down in cages. Long entrances or tunnels were run through the ground, known as main entries, through which cars were drawn by mules, driven by an employee known as the driver, for the purpose of hauling the coal when mined to the foot of the shaft, and also for the purpose of taking supplies from the shaft to the working places of the miners. From these main entries other small tunnels or entries were made through the mine at an angle of about forty-five degrees from the main entry and substantially parallel with each other; some fifty or more feet apart and off of these smaller entries, the rooms or chambers in which the miners did their work, were driven, and the coal mined from them. The plaintiff in this case was the exclusive occupant of one of these rooms, with the exception of a helper which he sometimes had, and the room which he had thus occupied for some time was the one in which the accident out of which this cause arose occurred.
The defendant company had a pit boss by the name of Thomas Graham, who employed and discharged the men who worked under the ground, and who had charge of these underground workings of the defendant. The plaintiff was not paid by the day or the month, but
Among other rules enforced at the time of the accident were the following:
“the working plage oe the miner.
“All miners working in any room will understand their working place in said room to be from the point of its turning off of the entry, to the face of the same. All necessary props and timber will be furnished him promptly on his calling for them, and he will be required to keep Ms room in a safe condition, and under any and all circumstances he is forbidden to luork in a room where he thinks there are any unsafe places. The worldng place of a miner in the driving of an entry is from the face of the entry back to the point of last measurement, and he is required at all times to keep said working place securely propped.
“drivers’ duties.
“They are required to have their mules properly cleaned and harnessed ready for work on the blowing of the whistle at seven a. m. Any driver who does not give his mule proper attention and good treatment will be subject to dismissal. It is the imperative duty of drivers to bring any props and timber- promptly whenever requested to do so by auy miner working in rooms, entries or on pillars from which he is hauling his coal. If the driver fails to furnish props for timbering promptly when requested he will be subject to dis
The evidence tended to show that it was the custom of the miners, before leaving their rooms at the close of each day’s work, to support with props the mine roof which had been exposed and likewise when he entered his room in the morning to test his roof for the purpose of discovering whether any dangerous condition not theretofore observed had developed during the night of his absence from the room. There was no rule as to the number of props that should be employed to support a certain amount of roof; this was largely determined by the miner himself, owing to the character of the roof, and by himself tapping and sounding the same. While there was evidence tending to show that there was a scarcity of props for some time, perhaps a week or two before the accident occurred, the plaintiff himself testified that only on that one day was there any insufficiency of props as far as his room was concerned ; that he had worked in this room the day preceding the accident. He testified:
“ Q. Now state to the jury, Kasper, whether or not this shortage of props there, or their failure to supply you with props, had continued for a number of days prior to the day that you were injured, or was it only on that day? A. Only one day there were not props enough.”
Plaintiff further testified that he saw nothing that could be dangerous on that morning, that he was not on that day digging for new coal, or uncovering any new roof by his working, but that he was simply cleaning up old coal which had remained in this room for some time.
The testimony on this point is as follows:
“Q. Now the place that fell on you, was it old roof or new roof? A. Old roof.
“Q. Ask what was he doing that day he was working there? A; There was. a pile of coal, and he was trying to remove it, or arrange it some way or other in the place. It was old coal that was lying there for some time, he said.”
Testimony on the part of plaintiff tended to show that on the morning of July 9, 1894, the plaintiff went down to his work, the pit boss not yet beingin the mine; instead of going to his working place, he waited, in company with several other miners, to see the pit boss in relation to the props needed in his. room; that about seven o’clock the pit boss appeared and was told by plaintiff that he needed props in his room, and that he feared the room was not safe; that plaintiff said to Mr. Graham, the pit'boss, “I need some props in the place,” and Graham said, “You go in there and work, there is no danger.” The plaintiff’s account of this conversation is as follows: “I say, ‘Mr. Tom, I want the props,’ and Tom says, ‘No props;’ I said, ‘May be the roof fall on me sometime, I need props;’ ‘and he says, ‘Go to work; do not fool awhile. The roof is all right; there is no danger; I send to you; the driver comes now on ‘the first trip, and I send the props right away when he comes to your room, he will bring your props.’ ” He further testifies that no props were sent in that day, and that he believed that the roof was safe, and that there was no danger’; that he believed that the pit boss knew better than he did. This conversation occurred about seven o’clock in the morning, and the roof fell on him and he was hurt about four in the afternoon. That he did no mining that morning, that is, dug down no new coal in his room, and had not uncovered any new roof that day.
The evidence was further that a large quantity of dirt and rock fell on the plaintiff, striking him on the
Tbe facts in regard to tbe releases and in regard to tbe admission of evidence of which tbe defendant complains, and tbe several instructions, will be noted in tbe course of tbe opinion in tbe discussion of tbe several assignments of error.
The grounds of negligence upon which this action is based are, first, “in failing to furnish to plaintiff a sufficient number of props or braces to support the roof of said mine, to-wit, thirty in number, and in failing to perform its duties to furnish said props and in failing to conform to tbe custom and usage to furnish props in said mine, and, secondly, in carelessly and negligently failing to cause tbe roof of said mine to be properly supported, either by tbe wooden props or braces or otherwise, whereby tbe roof of said mine was caused to fall upon tbe plaintiff, and in carelessly and negligently allowing said mine to be in a dangerous and hazardous condition as aforesaid, and in carelessly and negligently ordering and directing tbe plaintiff to enter said mine when it was in a dangerous condition and in assuring tbe plaintiff tbat be could enter said mine and labor therein with safety to himself and in ordering plaintiff to proceed without necessary props while said mine was in a dangerous condition, all of which defendant knew and all of which was carelessness and negligence.”
On tbe part of tbe plaintiff tbe evidence tended to show tbat in so far as bis own room was concerned there bad been no lack of props up to tbe morning of
It is a common law action for negligence, and the duty of the defendant was to furnish a reasonably safe place. It cannot be said that the mere falling of the roof was of itself sufficient evidence of negligence to entitle plaintiff to recover.
On the part of the defendant the contention is that the notice which plaintiff gave to the pit boss of his desire and need for props that day was simply to prop the roof which he expected to uncover that day, and that as he did not uncover any new roof that day, the failure to furnish props had in fact no causal connection with the injury which he received by the falling of the old roof, and that as he had not suffered for want of props up to that day, the presumption must be that up to that time and as far as he had gone the roof had been sufficiently propped. To this the plaintiff answers, that it is evident that the old roof was not sufficiently propped from the fact that it fell, and that the
I. For the plaintiff the court gave the following instruction:
“1. The jury are instructed that, if they believe from the evidence that the plaintiff, Wojtylak, on or about July 9, 1894, was in the employ of defendant as a miner in its coal mine near Leavenworth, Kansas; that it was the business of defendant, under the terms of such employment, to furnish plaintiff and keep him supplied with props to be used by him in supporting thereof that part of the mine where plaintiff worked; that prior to said day plaintiff had called for such props and defendant had failed to furnish them; that one Thos. Graham was the pit boss in said mine and vice-principal of the defendant, as elsewhere in these instructions defined; that said Graham was an expert and possessed of superior skill and experience in all matters pertaining to the underground working of said mine, as conducted by defendant, and that under the terms of such employment and the usages of said mine said Graham was empowered to and did, when called upon by the miners so to- do, decide upon the safety of any and all portions of said mine, and then was, and
In the determination of the correctness of this instruction it must he borne in mind that the petition made the necessary averment that “the’said roof at the point where plaintiff was ordered to work was and had been in a dangerous condition which was known to the defendant.” While the dangerous condition of the roof is made an essential prerequisite of a finding of negligence on the part of the defendant, this instruction nowhere requires the jury to find from the evidence that the roof either was or had been in a dangerous condition or that any such dangerous condition was known to defendant. We think this omission renders this instruction fatally erroneous. While it is true that it requires the jury to find that plaintiff felt in doubt about the safety of the mine and so reported to the pit boss, and that the pit boss told plaintiff to go on with his work, that there was no danger, and that part of said mine roof caved and fell upon the plaintiff, it does not require the jury to find that defendant either knew or might have known by the exercise of ordinary care, that the mine was in a dangerous and unsafe condition, and without this proof plaintiff cannot recover.
If the mine was not in a dangerous condition already the exercise of ordinary care by the defendant would not have discovered that- it was and the defendant was not liable simply because the pit boss directed the plaintiff to go to work therein. In Crane v. Railroad, 87 Mo. l. c. 595, in which the plaintiff sued the defendant for negligence in furnishing a defective and unsafe ear, Norton, J., speaking for the court, said: ‘ ‘ To sustain the allegation in the petition that defendant negligently furnished a car that was defective and unsafe, the plaintiff would be required to prove the fact that the car was unsafe; and, also, the fact that defendant either knew, or, by ordinary care, might have known of the defect, because without such proof the
The jury might well have concluded under plaintiff’s instruction that it was not at all necessary to have found that the roof of the mine was in fact dangerous, and that the defendant knew, or by the exercise of ordinary care could have known that it was, but that the mere fact that defendant’s pit boss ordered the plaintiff to go to work therein, coupled with the fact that the part of the roof did fall, was all that was necessary to entitle plaintiff to a verdict.
Moreover, this instruction authorized the jury to find “that prior to said day plaintiff had called upon defendant for such props, and defendant had failed to furnish them.” Now, there was absolutely no evidence of any demand by the plaintiff upon the defendant to furnish such props, or that the defendant had failed to furnish them on any day prior to plaintiff’s injury; on the contrary, the plaintiff testified unequivocally in answer to a question propounded by his own attorney on direct examination that he had never experienced any shortage of props except on the very day of the acci
The measure of care required of the defendant and its pit boss was to observe ordinary care in furnishing plaintiff a reasonably safe place to work, and yet the instruction authorized plaintiff to recover if they should find the further facts recited in his favor, even though “the danger from said mine roof was not such as to threaten immediate injury, and the condition was such that under all circumstances shown in evidence a Very prudent man might reasonably have believed it was safe for him to continue in such work until props were supplied to him.” Now, the degree of care which would be exercised by a very prudent man is the highest degree of care known to our law, and thus impliedly, at least, the defendant would have been lia
Again, the instructions submitted to tbe jury whether “on the morning of said day plaintiff felt in doubt about tbe safety of tbe mine, roof in bis working room or chamber, and so reported to said pit boss.” Tbe petition alleges that tbe roof was unsafe and that defendant knew.it, and instead of requiring tbe jury to find these allegations tbe instruction substituted tbe fact that plaintiff felt in doubt about tbe safety, etc. Tbe requirements of tbe instruction are not equivalent to tbe allegation of tbe petition on this point. It would be altogether possible for tbe roof to be perfectly safe and known to be so by tbe defendant, and yet, for tbe plaintiff to bave doubts as to its safety and. bis doubt known to tbe defendant; on tbe other band, if tbe roof was in fact unsafe and its condition known to defendant, defendant’s duty would not bave been lessened because tbe plaintiff bad absolute faith in its safety. Under tbe petition tbe defendant’s liability is based upon tbe fact of tbe unsafety of tbe roof and its knowledge of such condition and not merely upon tbe plaintiff’s apprehension of danger.
II. It is insisted that reversible error was committed by tbe trial court in permitting tbe plaintiff to prove a certain incident and conversation with Thomas Graham, tbe pit boss, some three quarters of an hour after tbe accident happened. "When tbe witness Gontarewitz was on tbe stand, be was asked: “Did you see Kasper [tbe plaintiff] when be was taken out? A. Yes, sir. Q. Did you see him before be was taken from tbe mine, taken up to tbe top? A. Yes, sir; there was Jim and that other fellow that died, was going to fight with Tom Graham. He told him, ‘See now what you get for telling him to go to work.” As this answer in regard to Gorski and tbe other fellow going to fight with
The admission of this evidence cannot be defended on the ground that it was volunteered by the witness. It is true it was wholly irresponsive to the question first asked him, but when the substance of the objectionable answer was adopted and twice incorporated immediately in other questions by counsel for plaintiff, and after defendant had called the court’s attention to its incompetency, it cannot be justified as a mere inadvertence.
III. A kindred assignment of error is that which is based on the question propounded to Thos. Graham, the pit boss, when he was on the stand. After calling his attention to certain miners who were present at the foot of the shaft, whither they had brought plaintiff after he was hurt, he was asked: “ Q. Now, then, I will
Thereupon, in rebuttal, and to impeach Graham, the plaintiff over the objection of defendant, later called Gontarewitz and Gorski, and repeated the question asked Graham, and they testified that Pokelli did say what Graham denied he said to him.
It will be observed, first, that the declaratipn thus admitted against defendant was not a statement or declaration of one of its managers or employees, but of one of the miners, since deceased, and made at least three-quarters of an hour after plaintiff was hurt. Indeed no effort whatever was made to show that Graham, the pit boss, made any reply to this charge and denunciation of himself. This evidence was clearly incompetent. It was no part of the res gestae. Even if Graham had made declarations that evening as to the cause of plaintiff’s injury, they would not have been competent evidence in chief against the defendant. They could only have been a narrative of what had oc
Contradictory statements which may be shown for the purpose of impeaching a witness must be of fact, pertinent to the issue and which could have been shown in evidence as facts independent of the inconsistency. [Hamburger v. Rinkel, 164 Mo. l. c. 407.]
This statement, however, was not even the inconsistent statement of Graham, because Gorski or Gontarwitz neither pretended to testify that Graham made any reply whatever to Pokelli’s statement. The whole matter then resolves itself into the simple proposition whether, as against the defendant, the statement of Pokelli charging defendant’s pit boss with neglect in not furnishing the props to plaintiff, and cursing him for being the cause of plaintiff’s injury, was competent. We know no rule of evidence or any sound principle of law that would justify it. It is now claimed that it was competent on cross-examination to refresh Graham’s memory or rather to test his reliability as a witness as to the occurrences in the morning. As we have already said, what occurred in the early morning when plaintiff and his witness assert plaintiff asked for props was all well enough, because said in the discharge of Graham’s duty, as the representative and agent of defendant, but it is clear that it was incompetent for the purpose of impeachment. It is obvious that the controlling purpose of this inquiry of Graham and the attempt to impeach him thereon was to get before the jury Pokelli’s conclusion as to who was in fault, a fact that the jury was impaneled to try and determine. That this evidence was exceedingly
It was incompetent as impeaching evidence, being on collateral and impertinent matter. [Roe v. Bank of Versailles, 167 Mo. l. c. 426; Hamburger v. Rinkel, 164 Mo. l. c. 407.]
IV. Error was also committed in permitting Mr. Atwood, counsel for plaintiff, to testify when he (Atwood) first became aware that defendant claimed to have plaintiff’s release of the cause of the action sued on.
In the second paragraph of defendant’s answer this release was pleaded as an affirmative'defense, to which plaintiff replied that he could not read or understand the English language and the release was procured from him by fraud by misrepresenting it as a mere receipt for $100, paid him by defendant as a gratuity.
Under, the issue thus framed, it’was important for plaintiff to convince the jury that he did not know he had given a release of his action set forth in the instrument. His knowledge would be inconsistent with his claim of fraud. On the part of the defendant, Mr. Cad-' mus, who obtained the release, and Dr. Brock both testified it was fully explained to plaintiff when he executed it. On his part he and his daughter, who it seems was only eight years of age when the release was executed, and had never been to school and could neither speak nor understand the English language, testified
The issue was whether plaintiff had executed the release and knew that he was releasing his cause of action, not whether Mr. Atwood knew it. How could Mr. Atwood’s ignorance of it affect plaintiff’s knowledge? Mr. Atwood’s testimony could have no other effect than that of proving plaintiff’s self-serving declarations in his own-behalf, and thus lay the foundation for an argument to the jury that plaintiff did not know he had executed the release, because, if he had, he would have told his attorney in the case.
Such a line of argument would doubtless have had great force with the jury in passing upon this question in the case.
But in justification of this testimony plaintiff insists it was admissible in rebuttal. It is clear it was not admitted as rebuttal but because the learned circuit judge was of the opinion he had erroneously excluded it in chief, but because Mr. Braidwood, a witness for defendant and a former pit boss and superintendent of this mine during the time plaintiff worked in it, testified that he knew plaintiff well and frequently came in contact with him, and knew his capacity as a miner, and that plaintiff was a competent miner and able to woi'k his place in good shape and a man that always made good wages, plaintiff insists this evidence was proper to show that plaintiff really eaxmed less than an average miner, and to rebut Braidwood’s evidence from which the jury might draw the deduction that plaintiff could not have drawn good wages unless he had been a skillful man. It is quite apparent that this evidence was admitted as evidence in chief and that it had no tendency to rebut Braidwood’s evidence. The latter was not asked what he considered good wages, or what wages an average man could earn in that mine during that time, or any other fact, that opened proof of the daily earnings of the plaintiff. It was error to admit it either as evidence in chief or in rebuttal.
VII. Error is assigned in the giving of the ninth instruction for plaintiff.
Our statute, section 654, Revised Statutes 1899, now permits the plaintiff to assail a release pleaded- in the answer, by alleging in the reply and proving that such release or other discharge was fraudulently- or wrongfully procured. There was evidence of a tender of the amount of the consideration named in the release into court for the defendant, but defendant could not have taken it down at any time without permission from the court, had it elected to do so. There was. no evidence of any other tender back to defendant “within a reasonable time after plaintiff first learned that said instrument was a full release.” If the tender in court was relied on as sufficient, then the instruction should have been so framed as to have fixed that as the time, and place of the tender, and not left it to be surmised whether plaintiff had made some other tender or when he discovered the instrument was a full release. •
Looking at the order of. the court in the light of Och v. Railroad, 130 Mo. l. c. 45, it is very doubtful, to say the least, whether it complies with the spirit or the language of that decision, which is modified only to the-extent of permitting the tender to be made, and the fraud pleaded in a reply instead of the petition.
VIII. Instruction numbered one given by the court of its own motion is challenged for the reason that it does not place the burden of showing the failure of props on the plaintiff. This was the negligence
IX. We think the objection to instruction numbered three given by the court of its. own motion is without merit. The release was not challenged on the insufficiency of the consideration alone.
X. Instruction numbered two of the series given by the court of its own motion is not objectionable as an abstract proposition of law, but that offered by defendant in its 18th instruction which was refused is preferable and* more applicable to the facts developed in this case.
■ XI. Appellant urges that the circuit court erred in refusing two instructions prayed by it, numbered 3 and 21, to the effect that if the jury believe that the plaintiff’s cause of action was barred by the laws of the State of Kansas before the commencement of this action plaintiff could not recover. The laws of Kansas as to limitation of actions like this were read in evidence and in connection therewith plaintiff refers us to section 4280, Revised Statutes 1899, adopted and approved May 24, 1899, three years after this suit was commenced. Defendant is a Missouri corporation. There was no proof of the statutes of Kansas as to the character of judgment which plaintiff might have recovered in Kansas for his injury. Whether he could have obtained a full judgment as on personal service, or whether his judgment would have been binding only on property attached in said State, we are not advised by the testimony, but counsel for plaintiff assert that the Kansas statute only permits a judgment in rem against the property attached.
As the burden was on the defendant to show that the action was fully barred by the laws of Kansas, we think no error was committed in refusing these two instructions, even if it be conceded that the act of 1899,
Moreover, we are hound by the Kansas law on this subject and the Supreme Court of that State has as recently as December 12,1903, in Williams v. Railroad, 74 Pac. 600, held that a foreign corporation is ‘ ‘ out of the State” within the meaning of section 21 of the Code of that State and for that reason cannot avail itself of the Statute of Limitations of that State. While the opinion in that case is not in harmony with our own decision in Sidway v. Mo. L. & L. Stock Co. 187 Mo. 649, it must govern this point, as section 4280, Revised Statutes 1899, only permits this bar when the action is barred by the laws of the State in which it originated.
XII. The circuit court refused all of defendant’s instructions on the subject of contributory negligence. In so doing it committed manifest error. This action is not a statutory action based upon the violation of the Kansas or Missouri mining acts. The cases brought on statutes giving damages for toilful violations of such acts and in which it is ruled that contributory negligence of the miner is no defense, have no application here.
This is merely a common law action for negligence. The testimony of the miners, and the rules of the company in evidence, alike established that it was the duty of plaintiff to look after the safety of his room in the mine. The very purpose of furnishing him props, the lack of which he makes the basis of his action, was to enable him to properly shore up and prop the roof. The evidence which he himself gave shows, there was no lack of props until the day he was hurt. He testifies that he saw nothing to make him believe it was dangerous that morning. We think it was a question for the jury to answer whether in view of the testimony as to his capacity as a miner and the length of time he had worked in this mine, and as to what pre
We are cited to Bowerman v. Lackawanna Min. Co., 98 Mo. App. 308. That was an action on the statute, and hence is not in point, but the Court of Appeals constructed the clause, and “it shall be the duty of the owner, agent or operator to. send down all such props when required,” to mean “when needed,” and it was not the duty of the miners to “request” or “demand” them, but it is that of the company to furnish them because they are needed and of this fact it is conclusively presumed to be apprised. Of course no such rule is applicable to this common law action for negligence, but we are unwilling to sanction the doctrine they announced in Bowerman’s case. That decision is in direct conflict with a former decision by the same court, Adams v. K. & T. Coal Co., 85 Mo. App. l. c. 495, wherein it is said, “We do not mean to state that when the mine operator violates his statutory duty to furnish props on request of the servant such servant may voluntarily and knowingly place himself in peril which is open, and patent to the observation of any reasonable man, for that would amount to self-inflicted injury. But the statute was intended (when violated) to cut off the excuse of the operator that he had' furnished what he thought was and what appeared to be a safe place to work, even though the servant also thought it was safe, if he) nevertheless, out of reasonable caution against accident, had demanded the props.” Our statute is largely a rescript of the Illinois statute on this subject. The Supreme Court of that State has summed up, in a few words, its construction of the statute of
We think section 8822, Revised Statutes 1899, means that the mining company shall keep on hand a sufficient supply of props, so that when a miner requests them they shall send them to him, without unnecessary delay, to enable him to prop his room, but as already said, this is not a statutory action, and the facts in the evidence entitled defendant to proper instructions on contributory negligence. We have sufficiently indicated our views as to the principles of law which must control in the trial of this cause. We may, however, remark that after the plaintiff had testified that he had not needed props on any other day, the court should have withdrawn the evidence of other miners as to the lack of props in their rooms or generally. Plaintiff was not entitled to recover because the company had failed, if it had, to furnish other miners with props.
For the errors noted the judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed.
