Adams v. Kansas & Texas Coal Co.

ELLISON, J. — The plaintiff sued the defendant in the Macon county circuit court for damages alleged to' have been occasioned by personal injuries received while at work for defendant as a miner in its coal mines. He recovered a judgment. Plaintiff was a miner of experience and while engaged at work a rock in the roof of the mine fell upon him inflicting the bodily injury of which complaint is made. The statute of this state section 7076, Revised Statutes 1889, reads that: “The owner, agent or operator of any mine shall keep a sufficient supply of timber, when required to be used as props, so that the workmen may at all times be able to properly secure the said workings from caving in and it shall be the duty of the owner, agent or operator to send down all such props when required.” The same statute, section 7074, as amended in Laws 1891, page 182, gives the miner a right of action for damages arising from a failure to furnish such props when required. The evidence tends to show that plaintiff made repeated requests of defendant’s pit boss for props during five or six days immediately preceding the injury and that the boss failed to furnish them. That if he had furnished them plaintiff would have put them in place in support of the roof [493] and the accident would not have happened. On the other hand, the evidence also tends to show that plaintiff with knowledge of the failure to furnish the props continued to work in the mine and that he examined the roof and concluded he could do so in safety. In this conclusion the result showed him to be mistaken. If such examination had disclosed to his judgment that the roof was patently unsafe and that he could not continue his work without imminent peril, there would have been room for application of defendant’s contention that he could not recover on account of his contributory negligence in continuing to work under such conditions. Notwithstanding that plaintiff knew defendant had not furnished the props as requested, yet as the danger from lack of them was not open and patent and did not appear imminent, he was not forced to quit work, or else to accept harmful results without complaint. Such is the rule in this state, as is shown by a long line of decisions in the supreme court and the courts of appeals. Conroy v. Iron Works, 62 Mo. 35; Keegan v. Kavanaugh, 62 Mo. 230; Flynn v. Railway, 78 Mo. 195; Stephens v. Railway, 96 Mo. 207; Huhn v. Railway, 92 Mo. 443; Hamilton v. Mining Co., 108 Mo. 364. This view of the law has been lately upheld in the supreme court in an opinion by Judge Burgess. Hamman v. Coal & Coke Co., 156 Mo. 232. One of defendant’s principal contentions is that plaintiff’s petition fails to state a cause of action in that it does not allege the danger of plaintiff’s situation was unknown to him; or, that the danger resulted from an extraordinary cause which could not be anticipated by plaintiff; or, that plaintiff was, at the time of the injury, in the exercise of ordinary care. The answer to these positions is that this action is statutory and is based on defendant’s violation of a statute whereby it was made its duty to keep a sufficient supply of [494] props for use in the mine and to send them into the mine when required. A failure to comply with such duty gave to the injured party a right of action for the damages sustained by reason of such failure. In an action on this statute a petition is sufficient which, in apt terms, states the facts showing a violation of the statute and an injury resulting therefrom. Th'ib petition meets this requirement. It alleges plaintiff’s employment in defendant’s mine, his injury while at work and how it occurred. It alleges defendant’s duty under the statute aforesaid, plaintiff’s repeated request for the props and defendant’s failure to perform such duty whereby,, by reason of such failure, the injury therein described resulted. If for any legal reason plaintiff is not entitled to recover notwithstanding defendant’s unlawful conduct, it should be brought forward by defendant’s pleading. It is further urged that the evidence fails to make out a cause of action. We think this contention also loses sight of the influence of the statute on the question. Thus notwithstanding it be admitted that plaintiff had equal means of observation with defendant and that he examined and tested the roof by tapping on it with his pick, thought it was safe and continued his work; and even though it be conceded that it did appear to be safe, yet if coal had been taken out to such an extent as to leave a space of roof, as in this case, large enough to reasonably suggest that it should be propped, and props were requested and refused, then a liability was incurred for resulting injury. In such state of case the defendant can not be allowed to 'excuse itself by reason of false appearance of safety. If it could the statute would be of no importance or beneficial consequence to miners. The statute imposes' the duty to furnish these props on request of the miner and when it fails to perform that duty it assumes the risk of resulting accident. [495] 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. We consider the instructions placed plaintiff’s case properly before the jury. Those for defendant were of such exceeding liberal character in its behalf that no complaint should be made of them. The judgment is affirmed. . All concur.