Strode v. Conkey , 105 Mo. App. 12 ( 1904 )

ELLISON, J.

The plaintiff’s ward is the infant daughter of R. J. Bennett who was an employee in defendant Conkey’s lead and zinc mine, and while engaged in work he was killed through the alleged negli"geneé of defendant. Plaintiff recovered judgment in the trial court.

It appears, at least the evidence tended to show, that one Frantz was defendant’s foreman in charge, control and direction of several men who were at work in loading a car at the surface of the mine with tools and material to be carried into the mine, among which was a square block of wood. The car, when loaded, was run down the incline by cable into the mine on a track descending at an angle of about forty-five degrees. The deceased was at work down in the mine as ‘ ‘pump man” at the pump, eight or ten feet from the bottom of the incline. The car was being loaded at the surface, when Frantz picked up the square block and standing off, intending to land it in the car, pitched it over the sides and into the shaft, where it fell to the bottom, striking deceased on the head and hilling him. As the block was seen not to go into the car, one of the men immediately said to Frantz: “Look out, you are liable to kill that man down there,” and he answered, with an oath, that, “if he wanted to work there, he would have to learn to dodge.”

It is claimed that since the negligent act was committed by Frantz while doing the work of a laborer, that he and deceased were fellow-servants and consequently defendant is not liable for the latter’s negligence in throwing the block. We can not allow the defense. We have recently considered the subject in Donnelly v. Aida Mining Co., 103 Mo. App. 349, where the authorities will be found to the effect that though the negligent act be that of the foreman while himself engaging in the work of those employed under his charge, yet that fact does not cause him to lose his character as vice principal. To the authorities there cited, counsel have added, Russ v. Railway, 112 Mo. 50-53; Haworth v. Railway, 94 Mo. App. 215, 224.

Objection was made to-the foregoing statement of Frantz when called to by one of his men as he tossed the block over the car. We think it was properly received in evidence. It was made at the very time of the act and while the block was in course of descent. Cunningham v. Railway, 79 Mo. App. 527; Stevens v. Walpole, 76 Mo. App. 213; Devlin v. Railway, 87 Mo. 545; State v. Mathews, 98 Mo. 125.

We conclude that defendant’s objections to the instructions do not require a reversal of the cause. That made to number one, in view of what we have said, is not sound. The objection that instruction number two did not confine the jury to the necessity of arriving at a belief from the “evidence” in the cause: in other words, omitting the word “evidence,” is not substantial. Neither was the general character of the instruction objectionable as now understood by the rulings of the Supreme Court. See Parman v. Kansas City, — Mo. —.

After full examination of the points made against the judgment, we find nothing to justify its disturbance and it will be affirmed.

All concur.