McKinnon v. Western Coal & Mining Co.

BROADDUS, P. J. The defendant is a corporation engaged in mining coal in Barton county, Missouri. The petition states that on December 21, 1903, he was working as a laborer for defendant in its coal mine in said county, and while so engaged, without fault on his part, was crushed by a quantity of slate, stone and earth falling upon him from the roof of the mine, where he was laboring, whereby he was bruised, injured, his back hurt, and'several ribs broken.” etc. That said injury was the result of defendant’s negligence, in carelessly and negligently permitting the roof of said mine to become and remain in a dangerous and unsafe condition, so that slate, rock and earth in said roof had become loose, unsupported and liable to fall; that the condition of the roof required same .to be supported by props, and defendant wrongfully and carelessly and negligently failed to support and prop said roof; that defendant negligently failed to keep a sufficient supply of timbers to prop the roof of said mine as required, so that, plaintiff and other laborers therein might at all times be able to properly prevent said workings from caving in; that defendant negligently failed to send down into said mine such props as were required ; and that said mine, in which men were employed, generated gas, and defendant negligently and carelessly failed to have the same examined every morning by a practical and duly authorized agent to determine whether there were dangerous accumulations of gas, or lack of proper ventilation, or obstructions to roadways, or any other dangerous conditions in said mine. That plaintiff by reason of defendant’s negligence aforesaid was injured as described; that defendant knew the dangerous and unsafe condition of said mine when plaintiff was injured, or by the exercise of ordinary care could have known it; that notwithstanding the facts stated, — 159 — defendant ordered and caused plaintiff to work in and at suck unsafe and dangerous place, and under said unsafe and dangerous roof,” etc. The answer consisted of a general denial and that plaintiff was an experienced miner, was fully acquainted with his room, its surroundings and the danger to he apprehended in working therein; that it was plaintiff’s duty to put up his own props, to look after and test the roof of his room to ascertain whether it was safe or otherwise, and to put up said props when they were needed; that at the time of the accident, and for some time prior thereto, ample props had been delivered to plaintiff, which were more than sufficient to have enabled him, in the exercise of ordinary care, to prop his roof and make the same safe against all danger; and that it was no part of the duty of defendant to examine said roof nor to prop the same. That plaintiff had both actual and constructive notice, prior to his injury, and in ample time to have protected himself against the same, that the slate or rock which fell upon him was unsafe and liable to fall at any moment. That plaintiff, with both actual and constructive notice of the dangerous condition of said roof, and the danger to which he was subjecting himself in working without propping same, recklessly and negligently took his life in his own hands by continuing to work in said room after sufficient props had been furnished him without putting up any of said props, and by reason of his own reckless, willful and wanton conduct he brought about his own injury, without any fault or negligence upon the part of defendant; and that the dangers arising from said work, plaintiff was doing, were patent, open to observation, and were assumed by him, by reason of the facts aforesaid. The reply put in issue the facts set up in the answer. Plaintiff recovered judgment, from which defendant appealed. — 160 — The mine in this instance was operated in the following manner: First a shaft was sunk from the surface of the earth to a distance of about forty-six feet. What are called mine entries were run out in different directions from the shaft, which were about six feet wide and five feet high. Before a miner begins to work, a neck is cut from one of these entries about five or six feet in length, at the end of which the miner begins to dig coal. This latter place is called the miner’s room and is of various widths of from twenty to twenty-five feet. It was in one of these rooms the plaintiff was at work when he was injured. The mine in question was operated as similar mines were, with a cage from the surface to the bottom of the shaft and there were tracks for transporting coal to the shaft and material from the shaft to the different parts of the interior of the mine. The cars that carried the material back and forth were operated by mules in charge of a driver. At the time of plaintiff’s injury his room had been mined until it was about sixteen by twenty-five feet. It was shown that it was the duty of the miners to look after the condition of their rooms and to do the propping themselves. It was also shown that defendant had a sufficient quantity of props at the mine for the use of the miners. On quitting work the day previous to his injury, plaintiff had drilled a hole in the coal of his room and filled it with explosives, which in the usual course of business was shot, as the miners call it, after he left the mine. The purpose of the shot is to loosen the coal for the convenience of the miner. Plaintiff in his testimony stated that he had been working in the mine in question for about eight months previous to his injury; that the roof of his room in height was from two to three feet; that sometimes mixed with the coal is another material, which mixture the miners call “horseback;” that both the floor and roof of the mine were composed of slate, which on one side of the — 161 — room was safe and sound, but on the other side the slate was what he called “draw slate,” that is, slate that cuts itself, which was unsafe and needed props; that on the morning in question there were no props in his room, nor any in the entry room; that it was a rule when a miner wanted props he ordered them through the driver, who delivered the message' to the operator of the cage at the mouth of the shaft, who calls to the surface through a speaking tube for them, giving dimensions, which are furnished usually in a short time; that for several days prior he called for props, but did not get them and that on the morning in question, or a day or two previous, he is not certain which, he called upon the boss for props of a certain length and was informed by him that there were no such props on hand; that there was one prop in the room but it was too crooked to be used. At the time the roof fell upon him plaintiff was in a sitting position using the pick with his right hand, the usual maner of mining coal in that kind of a place. There was an abundance of evidence that there was a sufficient number of props in the room at the time in question; and evidence that plaintiff made no request for props as stated by him. He was not employed at regular wages, but was paid by the amount of coal he mined. It stands admitted that the mine in question did not generate gas; and it was also shown that it was one of the rules of the company that miners were to put in props whether they were needed or not. At the close of plaintiff’s case and also at the close of all the evidence, defendant requested the court to instruct the jury that plaintiff was not entitled to recover and to return a verdict accordingly, which the court refused. There is no dispute but what the falling of the slate and rock upon the plaintiff was the result of the negligence of some one in failing to support the roof by means of props. The plaintiff in giving his reason for — 162 — working under the roof without props stated that, although he would have used props if they had been furnished him, yet he thought it safe otherwise or he would not have gone into the room; that to him it seemed safe and sound and did not need props. The contention of defendant is, that as it was the duty of plaintiff to look after the safety of his own room, that he is not entitled to recover, as he was aware of the danger. In other words, that he was guilty of such contributory negligence as forfeited his right in that respect. But we are of the opinion that such is not the law. In Adams v. Kansas & Texas Coal Co., 85 Mo. App. 486, the court held, in an opinion by Ellison, Judge: “That, notwithstanding the 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 shown by a long line of decisions in the Supreme Court and the Courts of Appeals.” And that decision was expressly approved by the Supreme Court in Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260. And such is the holding in Western Coal Co. v. Beaver, 192 Ill. 335, which also met the approval of the Supreme Court in Wojtylak case, supra. The plaintiff’s testimony, as stated, was to the effect that he thought the roof safe, although as a precaution he would have propped it if props had been furnished. It was, therefore, a question for the jury, whether he was justified under the circumstances in working at the time stated, and not a question of law for the court. The Illinois case is to the same extent as what is said in Adams v. Kansas & Texas Coal Co., supra. In the former, it is said that the “mere contributory negligence on the part of the miner will not defeat a right of recovery where he is injured by the willful disregard of the statute, either by an act of omission or — 163 — commission on the .part of the owner, or operator, or manager.” { It is insisted that the court committed error in giving instruction numbered one for the plaintiff. It reads in part as follows: “You are instructed that it is the duty of a. mine operator to-keep on hand a sufficient supply of timber for props, to be used when required by the workmen in the mines to keep the workings from caving in; and when a mine is being worked under the supervision and direction of a ground foreman or pit boss, and if props are required in the mine, he is presumed to know it, and his knowledge is that of the company; and when such props are so needed or required, it is the duty of the company to send them down to the workman.” The theory of the instruction is, that it is not the duty of the workman to request props, but that of the foreman to know when they are needed and send them down into the mine. This court in Bowerman v. Mining Co., 98 Mo. App. 308; Weston v. Mining Co., 105 Mo. App. 702, and Bruce v. Wolfe, 102 Mo. App. 385, held, that the word “required” did not mean “requested,” but meant “when needed,” and the miner did not have to request or demand that props be sent down, but the mineower was charged with the duty of knowing when they were needed and to send them down without being requested so to do. But in the Wojtylak case, supra, the Supreme Court disapproved of that construction and approved of the holding in Adams v. Kansas & Texas Coal Co., supra, where the word “required” was construed to mean “requested,” and also approved of the holding in the Illinois case, where it is also held that the word “required” means “requested.” The court then proceeds in the following language: “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, it shall send them to — 164 — him without unnecessary delay, to enable him to prop his room.” Respondent insists that, as the opinion is obiter dictum, this court should disregard it and adhere to the holding in the Bowerman and other cases cited. But, as our decisions have been conflicting on the question, it is proper that we should say which is to govern. In so doing, due deference should be had for the opinion of the Supreme Court, which so pointedly calls attention to the conflict in the cases named. We take it for granted that that court, when the question again comes before it, will adhere to the decision in the Wojtylak case. Uniformity in rulings of the appellate courts is of the highest importance to litigants. Respondent, however, contends that, notwithstanding the instruction may have been erroneous, the error was cured by one given at the instance of defendant. It is true that defendant’s instruction numbered three is to the effect, that the duty devolves qn the workman to request props when needed, yet we cannot see that it had the effect of curing the defect in that of the plaintiff. They are absolutely in conflict with one another, and altogether irreconcilable. It is no such an error that we can say was harmless on the ground that the verdict was for the right party, as the evidence greatly preponderated in favor of defendant. The further question is raised by the defendant, that, as plaintiff worked not for wages but that his compensation was to be a fixed price per bushel for the coal he mined, he was not such a.workman for whose safety the statute was enacted. But we do not think the position is tenable. The purpose of the statute was to protect persons who worked for the owners of the mines in mining coal, without reference to the manner in which they might receive compensation for their work. — 165 — Respondent raises the point that the appeal should be dismissed because the defendant has failed to show certain matters in its abstract as are required by the statute and the rules of the court, but we find it is substantially good. Other questions raised in the case are not well taken. For the errors noted the cause is reversed and remanded. All concur.