Mount v. Western Coal Mining Co. , 294 Mo. 603 ( 1922 )

Respondent is an experienced coal miner and was injured in appellant's mine. He recovered a judgment for $20,000, and this appeal followed.

The mine is deep. Machines are used to cut the dirt from beneath the coal. The vein is about three feet thick. Beginning at the bottom of the shaft the coal is cut in constantly widening circles of which the shaft is the center. The uncut coal is called the face. The cutting machine is operated by electricity. It weighs 2800 pounds, and stands near the face on rails placed for that purpose. Four rails are employed. The machine stands on two. The other two are placed in front of the machine, and it moves out upon these when it has finished cutting under coal adjacent to it in its position on the other two. Then these last are taken up and laid in front of the machine again, and so the work proceeds. These machine rails are about six or seven feet long and are held in place by jacks. The cutting machine "has an arm about two and one half feet long upon which works an endless chain. This arm is extended beneath the vein of coal; the moving chain cuts the earth under the coal;" and thereafter "miners, who are called loaders, follow and break it up, load it into small cars which run on a track called the face track, and it is then hauled to the shaft and hoisted to the surface." The refuse which results from this cutting process is thrown back some seven feet from the face, and the heap which is thus created is called the gob. Roadways lead from the shaft to the face. The space along the face is laid out into rooms about eighty feet long. The division lines are imaginary. As the "face of the coal gets farther away from the shaft, the roof slate over the gob is supported by pillars or props." The working place was low, and the men worked in a stooping position. A machine crew consists of a machine-runner, a jack-setter, a spragger and a shoveler. The machine-runner operates the machine and is in charge. The jack-setter, or rail-setter, sets the rails upon which the machine moves along the face. The spragger's duty is to "keep the dirt out away from the machine and away from the chain as it revolves." This he does with a sickle shaped instrument. The shoveler shovels back the dirt and "watches the coal to keep the coal off of him and throws up the rails" from behind the machine when it has moved off of them, and takes down and passes forward the jacks which had held the rails down. When the machine is in operation it makes a great deal of noise and causes considerable vibration. The jack-setter, as he works before the machine, looks out for loose roof, and, if he discovers any, reports it to the machine-runner. It is the duty of the latter to see that the roof is secure or is made secure over the place of work as the crew moves forward. The witnesses say the spragger and shoveler have no time to watch the roof. They rely upon the others whose duties are as stated.

The evidence tends to show that the accident occurred in what is known as Lonnie Robinson's room. Robinson testified the roof had been loose for some weeks before, and a part of it, back of the place of injury, had previously fallen; that the part of the roof which fell on this occasion had shown cracks for three or four days; that he sounded the roof each morning and afternoon and always found it "drummy;" that this sound meant it was loose. "Q. But you didn't think it was dangerous to work under it, did you? A. Why, sure, it was dangerous to work under; but, of course, I watched it. Q. But, at any event, you thought it was safe to continue to work under it? A. Yes, sir. Q. And you didn't think it necessary to put any props under it? A. No, sir." He also testified that it was a loader's duty to "sound the room" to determine its condition; and that the longer a loose roof stands the looser it becomes.

At the time of the injury to respondent the machine was in operation. Just previously the jack-setter had "found some loose roof." He notified the machine-runner, who did not stop the machine, but came forward and looked at the suspected place. He sounded the roof, but did nothing more, and said nothing, but returned to the machine and kept it going. Respondent, then acting as shoveler, knew nothing of this interchange or of the condition of the roof. He continued along with the machine. When respondent, in the performance of his duties, had reached the spot immediately beneath the loose roof, a part of it, about twenty feet long and several feet wide, fell. The slab which struck him weighed fifteen hundred pounds or more. He was seriously injured.

I. (1) Appellant contends that there was no evidence tending to prove the roof was in such dangerous condition that it was incumbent upon it to do more than the evidence shows was done; that the only testimony in the record upon the point was offered by respondent, and it shows that inspection was made, and that it was made with dueInspection: care by those whose duty it was to make it, and thatDemurrer: it is affirmatively shown that this inspectionOpinion. disclosed no condition so dangerous as to call for further precaution. It is insisted that this appears from Taylor's testimony, and that his testimony is all the evidence there is upon the subject. Appellant concedes that "any evidence of a dangerous condition of which appellant had knowledge, either actual or constructive, would be sufficient to take the case to the jury." It also concedes that "respondent would not be bound by the testimony of one witness if it was in conflict with his other testimony," but urges that Taylor was the only witness to the point and his testimony disproved the need for further precautions. There is no question that the burden was upon respondent to show negligence. It is clear that it was the duty of appellant to use ordinary care to render respondent's working place reasonably safe (Clark v. Iron Foundry Co., 234 Mo. l.c. 449, 450) and that the care required is such "as a reasonably prudent man would exercise under like circumstances in order to protect his servants from injury. It must be commensurate with the character of the service required and with the dangers that a reasonably prudent man would apprehend under the circumstances of each particular case. Obviously, a far higher degree of care and diligence is demanded of the master who places his servant at work digging coal beneath overhanging masses of rock and earth in a mine than of him who places his employee on the surface of the earth, where danger from superincumbent masses is not to be apprehended. "[Railway Co. v. Jarvi, 53 F. 65; Western Coal Mining Co. v. Ingraham, 70 Fed. l.c. 220, 221.] It is not denied the duty of inspection rested upon appellant, and there is no contention that negligence, if any, on the part of those chosen by appellant to perform this duty for it, is negligence for which it is responsible. It is simply contended that respondent has affirmatively shown by uncontradicted evidence that the duty of inspection was properly performed and no cause of apprehension of danger discovered and that this ends the case. In a respect or two, so far as concerns the question under consideration, appellant is in error as to the status of Taylor, the jack-setter. There was ample evidence from which the jury could have found that the jack-setter had nothing to do with roof inspection except, since he worked ahead of the machine, to call the attention of the machine-runner to loose roof, and that this duty did not depend upon anything except a discovery of loose rock and did not entail any responsibility upon his part except that of notifying the machine-runner of it, whose duty it was to inspect the place thus called to his attention and determine what was to be done. Upon this view the testimony of Taylor that he did not think the loose rock he discovered was dangerous is not the conclusion of an inspector, but the opinion of one charged with no duty to determine the question of safety. In addition, Taylor, on this conception of his functions, had the right to rely upon the machine-runner's judgment, as that of the master (Hall v. Coal Coke Co., 260 Mo. l.c. 366), and the jury might well have attributed his opinion to such reliance and, therefore, have given it no weight, even as an opinion of the condition of the roof. Brammett, the machine-runner, was not a witness. Taylor's testimony as to what he, Taylor, thought Brammett thought about the roof had no considerable probative force. It was a mere inference from Brammett's action in proceeding with the work without pulling down or propping the rock. If such an inference drawn by Taylor is conclusive, then the inference the court might draw from the same act would also be conclusive, and no recovery could be had in any case where the person charged with the duty of inspection permitted the work to proceed. This is not a case in which the presumption that the inspector performed his duty is all the record presents on the question, and the case is, therefore, unlike Haggard v. McGrew Coal Co., 200 S.W. 1072. The roof had been loose for weeks. A part of it had fallen a few days before. For three or four days it had been cracked at the point at which it fell. The lapse of time increased the likelihood that it would fall. The vibrations of the machine enhanced the danger further and more and more as the machine passed under the loose rock. The removal of the jack after the machine passed was one of respondent's duties which brought him under the rock and which, of itself, further increased the danger of a fall. Robinson testified it was dangerous. He thought he could work under it without injury, with care. He did so. His position was unlike that of respondent. All the facts were before the jury, and the question of reasonable care, including that in performing the duty to inspect, was for the jury. The point is well settled. [Bowen v. Ry. Co., 95 Mo. l.c. 275; Anderson v. Western Coal Mining Co., 138 Mo. App. l.c. 80; Hoover v. Western Coal Mining Co., 160 Mo. App. l.c. 330; Lackland v. Coal Mining Co.,110 Mo. App. 634; Williams Coal Co. v. Cooper, 138 Ky. l.c. 298; Mammoth Vein Coal Co. v. Looper, 87 Ark. l.c. 219, 220; McCarthy v. Coal Co., 149 Ill. App. l.c. 278, 243 Ill. 185; H. H. Coal Mining Co. v. Schmidt, 104 Fed. l.c. 284, 285; Spevack v. Coaldale Fuel Co., 152 Iowa, l.c. 96, 97.

(2) Respondent was not conclusively shown to have known of the dangerous condition of the roof and the attendant risk, and the jury could have found, on the evidence, that he did not know of the one and appreciate the other. If he did not he had the right to rely upon the assumption that the master had usedKnowledge ordinary care to make the place reasonably safe andof Danger. the right to infer safety from the course pursued by the machine-runner whose duty it was to see to the safety of the mine roof. [Hall v. Coal Coke Co., 260 Mo. l.c. 366; Clark v. Iron Foundry Co., supra, l.c. 450; Corby v. Tel. Co., 231 Mo. l.c. 440, 441; Davis v. Turner, 69 Ohio St. l.c. 119; Wellston Coal Co. v. Smith, 65 Ohio St. 70, 87 Am. St. 547.] Nor is it conclusively shown that the danger was so glaring and obvious that a conclusive inference of contributory negligence arose. [Hall v. Coal Coke Co., supra; Western Coal Mining Co. v. Ingraham, 70 Fed. l.c. 223, et seq.; Bunker Hill Mining Co. v. Jones, 130 Fed. l.c. 818; Smith v. Kansas City, 125 Mo. App. l.c. 157.]

(3) There was no assumption of risk conclusively shown. This appears from the principles already stated and decisions already cited, and from Carter v. Baldwin, 107 Mo. App. l.c. 229. The general rule is that the doctrine of assumption of risks in mines "presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. It is those risks alone which cannot be obviated by the adoption of reasonable measures of precaution by the master which the servant assumes." [Pantzar v. Mining Co., 99 N.Y. 368; Watson v. Coal Co., 52 Mo. App. 366; Superior Coal Co. v. Kaiser, 229 Ill. l.c. 32, 33; Bunker Hill Mining Co. v. Jones, 130 Fed. l.c. 819; Clark v. Iron Foundry Co., supra, l.c. 450, 451.]

(4) It is suggested that the rule that the duty of the master to use ordinary care to make the employee's place of work reasonably safe does "not apply in all its fullness and strictness to cases where the place of the employee's work was transitory or was shifting from time to time." This is the rule which exempts the employer in case a fall injures aShifting miner working in his "room." The respondent's place ofPlace. work had nothing to do with changing the roof, in the sense of the rule invoked. It was the machine-runner's duty to use ordinary care in the circumstances to see that the roof was reasonably safe, and, in doing so, to take into consideration what was about to be done beneath it.

II. The objections to instruction one have been answered by this court in Garard v. Coal Coke Co., 207 Mo. l.c. 258 et seq. The cases were discussed in that decision. The instruction in this case is substantially the same as thatInstruction. approved in the Garard and cited decisions. In this case, also, instructions given for appellant further presented the rule from appellant's point of view and cleared up all uncertainty, if any, in respondent's instruction.

III. The final contention is that the damages are excessive. The evidence tends to show that the spinous processes of the eleventh and twelfth dorsal vertebrae were fractured; that bony lumps had resulted from nature's effort to remedy thisExcessive and enlargements had formed which impigned somewhatDamages. "upon the nerves" and caused pain; that there was no paralysis and, judged from an examination seven months after the injury, no reasonable likelihood of it resulting thereafter; that respondent had suffered much pain and still suffered some; that this inhibited use of the legs, and he was unable to get about except with the aid of crutches; that it was unlikely he could resume the vocation of mining or engage in any work which would require lifting; that he was likely to continue to suffer pain to some extent; that there was still considerable irritation of the nerves and, as one of respondent's witnesses put it, his condition is "more or less permanent. I don't mean that the man is totally disabled for his life, but he is more or less permanently disabled, I think, undoubtedly." There was probably no injury to the spinal cord, itself. Respondent had some trouble about sleeping regularly and a little with voiding urine. There did not appear to be anything the matter with the organs of the body or their performance of their functions, nor with his general health, except as stated. Respondent's age was thirty-one. He was earning $5 per day for the time he worked. His experts testified he probably could work at other things, but not at manual labor, particularly if lifting was required. After a consideration of these facts, the court is of the opinion that the judgment is somewhat too large. If respondent will within ten days remit $5,000, the judgment will be affirmed for $15,000 as of the date of the verdict; otherwise, the judgment will be reversed and the cause remanded for new trial. All concur.