Hoel v. Underwriters Land Co. , 173 Mo. App. 557 ( 1913 )

FARRINGTON, J.

—This was a suit for damages for an injury to plaintiff’s forefinger on his right hand. The jury gave him a verdict for $137 and defendant appealed.

The plaintiff at the time of his injury had been an .employee of the defendant for about four or five months, working in its mine as a shoveler. On this particular occasion while plaintiff was engaged in his regular duties, he was called, together with twenty-two other employees, to carry a “turnsheet” from one point in the mine to another point about two hundred feet distant and to lay the same in a place from which a similar structure had been removed. This turnsheet was made of planks (2 x 12’s) spiked together so that one set of planks crossed the other at right angles, and it was eight feet square. • One side was covered' with a sheet of steel so as to give it a smooth surface. This structure was used at the ends of divergent tracks in the mine, serving the purpose of a turntable for the mine cars, the turnsheet being placed on a level with the tracks and the mine ears being pushed from the tracks onto the turnsheet and turned upon the smooth surface thereof and headed onto the track desired. In letting the structure down, the plaintiff’s finger was caught and a part of it pinched off at the end. The moving of turnsheets did not occur regularly, and the evidence showed that this was about the third time one had been moved. Upon one of the prior occasions, it had been moved as this one was moved—by carrying it intact from one place to another. Upon the other previous occasion, it had been taken apart, but there is some testimony tending to show that this was due to the fact that some of the boards were in bad condition and it was necessary to replace them.

The charge of negligence contained in the petition is as follows: “That on or about the-day of October, 1911, the plaintiff, together with about eighteen or twenty other employees of defendant, were ordered by defendant to pick up and carry said turnsheet about three hundred feet, and to deposit the same upon the floor of one of the drifts of said mine at a point indicated and directed by defendant. That defendant carelessly and negligently failed and omitted to provide and furnish timbers or any other contrivance of appliances whatever upon which to rest or lay said turnsheet at the point to which defendant ordered and directed said turnsheet to be carried and deposited as aforesaid, so as to assist and enable plaintiff and his colaborers to lay or rest said turnsheet in depositing and placing it in proper place and position upon the floor of said drift, so as to prevent the catching of the hands and fingers of plaintiff and his colaborers between the underside or edge of said turnsheet and the floor of the drift of said mine in depositing it upon the floor of said drift: That in pursuance of the order and direction of defendant as aforesaid, plaintiff and his colaborers carried said turnsheet to the place in defendant’s mine to which they had been directed and ordered,' and upon arriving at said place, defendant by its agents and servants having authority so to do, carelessly and negligently directed plaintiff and his colaborers to drop said turn-sheet upon the floor of said drift of said mine, and in dropping said turnsheet upon the floor of said drift plaintiff’s hand was caught,” etc. ■

Defendant’s answer was a general denial.

The defendant admitted during the course of the examination of plaintiff’s witnesses that it had not provided any timbers or supports upon which to place the turnsheet. It was merely placed in the depression, where one had been which was previously removed.

At the close of plaintiff’s evidence, defendant offered a peremptory instruction, which, being refused, defendant declined to introduce any evidence, and the jury was instructed and in due course returned a verdict for the plaintiff.

The case was submitted to the jury to determine the issue of whether or not the failure to provide timbers or supports or other appliances or contrivances upon which to rest the turnsheet was negligence.

The record shows that plaintiff was a shoveler working in defendant's mine, and that the foreman called him, along with twenty-two other laborers, to move the 2500 pound turnsheet. The foreman knew what preparation had been made to receive it at the place where it was to be laid. The evidence shows that plaintiff, when called, was working some little distance from the place where it was to be deposited and did not know whether or not any preparation had been made to receive it and did not know the condition of the depression in which it was to be placed.

The defendant on its sole assignment of error contends that the evidence adduced failed to make a case to- be submitted to the jury in that there is no evidence of negligence; and assuming, as it does, that there is no proof of negligence, it filed a brief and argument here supporting the theory that where negligence' is not proven or a state of facts developed from which negligence may reasonably be inferred, and specific acts of negligence are charged, the doctrine of res ipsa loquitur does not apply. But the view we take of the case is that defendant assumed more than the record justifies in its position that the evidence does not disclose any negligence. As has been often held, negligence is not a fact which is the subject of direct proof but an inference from facts put in evidence, and when the facts are undisputed, the question of whether an inference of negligence can be deduced is one of fact for the jury under proper instructions of the court. [Baird v. Railway Co., 146 Mo. 265, 281, 48 S. W. 78.] “Negligence is something invisible, intangible, and, for the most part, incapable of direct proof,' like sensible facts or physical events. It is, in general, a matter of inference from other facts and circumstances which admit of direct proof, and which may raise a presumption of the truth of the main fact to be proved. These facts and circumstances must be such as would warrant a jury in inferring from them the fact of negligence by reasoning in the ordinary way, according to, the natural and proper relation of things and consistently with the common sense and experience of mankind. ” [Callahan v. Warne, 40 Mo. 136.]

The facts of this case leading up to and surrounding the occurrence of the accident are undisputed. The evidence shows .that the turnsheet or platform, weighing about 2500 pounds, was ordered moved from a certain place in the mine and deposited in a depression from which an old one had been removed at some previous time. Twenty-three men wére required to carry the-structure, and the distance to be covered was about two hundred feet. Nothing was placed in the depression to let the platform down on. There was no custom shown with reference to moving such platforms, for the reason, perhaps, that this was the only mine where this appliance was used according to the knowledge of the witnesses. It is true that plaintiff’s proportional part of this 2500 pound load was only a little more than 100 pounds; but it must be borne in mind that his part of the load was not under his control, but was to be carried and let down subject to the action and strength of twenty-two other laborers. Had the plaintiff prepared or helped prepare the place where the turnsheet was to be deposited, or had he known from any source how the platform was to be let down before he reached there with the load and undertook to do the work, it might be said that he had assumed the risk of letting it down as it was done; but the evidence shows that he did not know what preparation had been made, and he testified that he was on the far side from the place where the structure was to be let down and the turnsheet and the other workmen were therefore between his vision and the ground.

In order to sustain appellant’s contention it would be necessary to hold that the gathering from different parts of the mine of a body of shovelers and workmen, with no evidence that they were trained as a body to work in unison in handling large objects, with a knowledge which is common to all untrained men, where the safety of one depends upon the conduct of all as a body, do not when called together to do such work, move as one body, is in law no proof of negligence. In other words, a load of 105 pounds in the hands of one man might be very easily carried and lowered by him, but a load of 105 pounds to be lowered to the ground where his action in so doing is subject to the action of twenty-two other men each with a similar load, might become a complicated undertaking. Having shown all the facts surrounding this undertaking, - which are undisputed, it becomes a question of whether or not the inference of negligence can reasonably be drawn from those facts. To hold as appellant would have us hold, we must say that under these circumstances an ordinarily prudent master would have ordered, directed and supervised the moving of this platform just as the defendant’s foreman did. In doing it in this way, in the absence of any custom and in the absence of any risk assumed and in the absence of contributory negligence—there being no claim by appellant that the latter element is in the case—it is a very serious question whether appellant did act as an ordinarily prudent person would have acted in directing the performance of this particular work and certainly one about which the minds of reasonable men might differ. There are numerous cases in the appellate reports of this State sustaining the view we take, that the negligence under a state of facts similar to that disclosed in this record is a question of fact and not of law and therefore must be submitted to the determination of a jury. In the case of Hollweg v. Bell Telephone Co., 195 Mo. 149, 93 S. W. 262, the court announces the doctrine we adhere to and quotes with approval from the case of Baird v. Railway Co., supra. So, in the case of Sambos v. Railroad, 134 Mo. App. 460, 114 S. W. 567, the facts disclosed are subject to no stronger inference of negligence than those in the case at bar; yet the court held that the question of negligence or no negligence should have been submitted to the jury under the evidence adduced. And in the case of Moellman v. Lumber Co., 134 Mo. App. 485, 114 S. W. 1023, where the plaintiff fell into an unguarded hay chute in a loft, the question as to whether the defendant was guilty of negligence in not protecting the hay chute or in not informing the plaintiff -of its existence was held to be one to be determined by the jury. The-same principle is announced in the case of Butts v. National Exchange Bank, 99 Mo. App. 168, 72 S. W. 1083.

The court submitted this ease to the jury on proper instructions defining negligence, easting the burden of proof upon the plaintiff, and requiring the jury to find that what was done by the defendant ivould meet the measure of what an ordinarily prudent master would do. The jury found that an ordinarily prudent master would not have directed the work" as this defendant did, in the absence of knowledge brought to the plaintiff of the place prepared where the platform was to be let down. With no showing of contributory negligence, we must hold that the case was properly tried. The judgment is affirmed.

All concur.