Medlin v. Mendota Coal Co. , 161 Mo. App. 49 ( 1912 )

ELLISON, J.

Plaintiff was a coal miner in defendant’s employ and was injured in the service. He brought this action for damages, grounded on the negligence of defendant in not providing him a safe place in which to work, and obtained judgment in the trial court.

Plaintiff was hurt while timbering up the roof of an entry-way. He was cutting a place in the side of the entry in which to set props or uprights upon which to place cross pieces to support the roof.

Defendant asked for a peremptory instruction directing a verdict in its behalf. It was refused, and the propriety of that, action of the court is the sole ground presented in this court against judgment. Counsel for defendant has argued, with much force, that no case was made by the plaintiff for the reason that plaintiff assumed the risk of injury from the employment in which he was engaged. It was shown on the cross-examination of plaintiff himself that he was an old miner of eighteen or twenty years experience, and that he knew that the work he was directed to do was to fix a place in an entry to make the roof safe so that it, or parts of it, would not fall. It was shown that he used a sledge in breaking away a pla.ce for the timber and that had- a tendency to loosen the roof of the entry.

But it was likewise shown that while he was a man of experience in opening an entry, he had not had any previous experience in timbering so as to make an entry-way; and that he thought he could do this work without" harm to himself. There was evidence further tending to show that he was a mere “helper” to one Hawkins, and that his work wa,s done under the personal observation of Hawkins and the mine boss who had ordered the work done. It does not appear that the work was so glaringly and obviously dangerous as to prevent an ordinarily prudent man from engaging in its performance. In such circumstances the servant has a right to rely upon the superior judgment and information of the master.

While it is true, as stated in. defendant’s brief, that the master has a right to conduct his business in his own way and in accordance with his own plans (Blundell v. Mfg. Co., 189 Mo. 552; Bradley v. Ry. Co., 138 Mo. 293); yet he cannot order his servant into a place he knows is unsafe, or ought to know it, and escape liability for injury, unless the servant had the same knowledge and went into it without care. In this case, though much to the contrary, yet there was evidence tending to prove that while plaintiff knew such a place was dangerous, yet he thought he could comply with defendant’s order without injury to himself, and the place itself was not so glaringly dangerous as to have prevented him,, as an ordinarily prudent man, from so thinking.

If there is an injustice in the judgment it is not the fault of the court but rather that of the jury, upon whom the responsibility as to facts is cast. After careful consideration, we conclude we are not authorized to disturb the result and hence affirm the* judgment.

All concur.