Larson v. Center Creek Mining Co.

Ellison, J. Plaintiff’s husband was a miner engaged in the service of defendant in Jasper county. He was killed by the falling in of earth alleged not to have been properly secured. The accident came about by the following means as the evidence tended to show: Statement A drift was cut from a shaft on the defendant’s land by it, in a westerly direction, for the purpose of intersecting another drift west of the shaft running north and south. When the north and south drift was intersected by the drift running [517] from the east, it was found that the bottom of the east drift was from eighteen to twenty-four inches higher than the bottom of the drift running north and south. The east drift at that time was securely and properly timbered. Ramsey, who was the defendant’s ground foreman, directed the deceased Larson, the husband of the plaintiff, and other miners, to cut a ditch in the east drift, four feet wide, so as to get on a level with the north and south drift, and directed them to do so without retimbering the ground, saying that he was in a hurry to get it through and that it could be retimbered after they had cut the ditch through to the shaft. The miners started to cut the ditch as directed by defendant’s foreman, starting from the point where the two drifts, intersected each other and cut the ditch toward the shaft. The deceased and other miners had cut the ditch from that point eastwardly about fifteen or twenty feet, at which time the ground caved, killing plaintiff’s husband and three other men who were working in the ditch. The ground only caved from the point where the ditch was started to the point to which it had been dug, all the rest of the timbers east of that point remaining standing. The evidence further tended to show that the defendant’s foreman was present and directed the manner in which he wanted the ditch dug and that it was his duty to securely timber the ground and see that it was kept in a safe condition; that at one time he was down in the ditch when the dirt fell at one of the posts; that he directed a new post put in, and after the post was put in by other men than Larson or any of the men who were digging in the ditch, he said in the presence of Larson that it was safe to go ahead. [518] Ncontr?MltS?y dcíc^veSict?' [517] The principal point made in this case is that there was no negligence shown against defendant. It may [518] be said that defendant’s contention embraces the point that if defendant’s acts and conduct amounted to negligence, then the deceased was guilty of contributory negligence. The contention has made it necessary for us to go over the evidence. We have done so and find there was ample to sustain the court in submitting the cause and in refusing a new trial after the verdict. It was a reasonable and proper inference from the facts disclosed that the digging of the ditch without securing it as it was dug, was the cause of the foundation of the timber giving wray and thus causing the caving which killed deceased and the others. Master and servant: contributory negligence: superior judgment of master: glaring danger. The work was done in the presence and under the direction of defendant’s foreman. And there-was affirmative evidence tending to show that he, in the presence of deceased, pronounced the work to be done to be safe and directed the .workmen to proceed. It is well settled that in doing work for the master the servant has a right to rely upon the superior judgment of the master in directing certain work to be done in a certain way, though the servant knows the character of the work, unless the danger be so glaring as that no reasonably prudent man would have undertaken it in the same situation. But we will not undertake to again go over the ground so fully covered by the cases of Halliburton v. Railway, 58 Mo. App. 27, and Monahan v. Coal Co., Ib. 68, and Quigley v. Bambrick, Ib. 192. The facts in this case distinguish it from that class of which Watson v. Coal Co., 52 Mo. App. 366, is a type. Objections were taken to the action of the court on instructions but an examination of these satisfies us that no substantial error was committed. The judgment, under the circumstances, was liberally small in [519] defendant’s behalf and we do not feel authorized to disturb it. Affirmed. Smith, P. J., concurs; Gill', J., absent.