Abbott v. Marion Mining Co.

ELLISON, J.

The plaintiff was a laborer in defendant’s mine in Jasper county and received the personal injury for which he sues by a rock falling upon him from the roof of the mine. He recovered judgment in the trial court.

Plaintiff had the deposition of one of his witnesses taken by a notary public and it was read at the trial over defendant’s objection. The ground of the objection was that the witness’ testimony was taken down by a stenographer during the absence of the notary and that no stipulation for such irregularity was asked or given. It appeared that defendant’s attorney was present during the examination of the witness but took no part therein. The deposition was filed in court on the first day of the session, but the motion to suppress was not made until the case was called for trial, several days afterwards. The trial court overruled defendant’s motion and assigned as ground therefor defendant’s neglect to make his objection earlier. In this, the court did not err, although there was no rule of court prescribing when motions to. suppress should be filed. In fairness to plaintiff, the motion should have been made sooner: since plaintiff might then have been able to have procured the attendance of the witness; or, at least, could have asked that the cause be continued and thus have avoided the trouble and expense of preparing for trial. “If the deposition was in any respect open to irregularities, the motion to suppress it, under the circumstances, came too late. Such motion should be made before the case is called for trial, so as to afford opportunities to retake the testimony or correct defects in the taking of the deposition.” [Bibb v. Allen, 149 U. S. 481 , l. c. 488-9; Howard v. Stillwell, 139 U. S. 199 .] And so the Supreme Court of this State has discountenanced unwarranted delay in making such motions. [Hoyberg v. Henske, 153 Mo. 72 ; Holman v. Bachus, 73 Mo. 51 .]

It appears that plaintiff was engaged in working defendant’s mine on the stope, throwing the dirt down to *555 a platform where it could he taken away or disposed of by others. This work was called “brunoing” by the miners and plaintiff was known as one of the “bruno” men. While so engaged a rock fell upon him from the roof.

The petition does not state the cause of complaint against defendant with desirable certainty and clearness. It charges that it was the duty of defendant to timber the mine so as to prevent rocks from falling. It then charges that defendant negligently failed to timber the mine and permitted the roof to become dangerous by allowing large stones to hang loosely from it; “that by reason of the carelessness and negligence of the defendant in failing to timber and support the sides and the roof of the drifts in the mine it was unsafe and dangerous.” The petition then charges that defendant negligently failed to inspect and trim the roof so as to remove loose dirt and stones and thereby protect the men engaged in work. While the petition charges a duty on defendant to timber the mine, and that such duty was negligently omitted, and that by reason thereof the mine became unsafe, it does not charge a duty to inspect and trim nor does it charge that the failure to inspect caused the injury.

But plaintiff’s chief instruction fixes upon either of these omissions of defendant as negligence in' the absence of performance of the other. That is, that defendant should have timbered the mine, or else it should have inspected and trimmed it. We will, therefore, accept the issues as thus tendered by plaintiff. The petition then further charged and tendered as an issue, that the defendant either knew of the dangerous condition of the mine, or might have known it by the use of ordinary care and diligence. In order to give the latter allegation any practical effect we must assume that it impliedly embraces the charge that defendant knew, or might have known, the dangerous condition for such reasonable length of time as would have been sufficient to have removed or relieved the dangerous condition. When *556 knowledge of a certain situation is relied upon as showing culpability, it must be shown to be prior knowledge. Mere knowledge of a dangerous situation, without more, will not show culpability. There must be time to remove or relieve the danger. The instruction, however, makes the defendant culpable if it knew of the dangerous roof either at the time of the accident, or prior thereto. It was erroneous.

As the case will be retried we will state further objections to the instruction. It assumed that it was negligence in defendant not to timber the mine, when there was evidence tending to show that at the place where plaintiff was at work it was not practical to do so. It should have contained some expression which would permit the jury to say whether it should have been timbered at that place. The action is not based on the statute requiring mineowners to furnish timbers and the question whether the mine could have been rendered safe and the injury avoided by the use of timbers must be determined without regard to that statute.

Again, since there was but the one instruction for the plaintiff on the merits of the controversy, the hypothesis of plaintiff’s being guilty of contributory negligence should have been embodied in the instruction. It was not cured by those given for defendant. As the case stands in the record, that phase of it nowhere appears. Its omission in an instruction in Hughes v. Railway, 127 Mo. 447 , was excused from the fact that it was presented in other instructions. In Sullivan v. Railway, 88 Mo. 169 , the majority opinion held that, where an instruction directed a verdict for plaintiff without including.a reference to the issue of contributory negligence it was reversible error, even though other instructions presented that phase of the case. That case was overruled on that point; it being afterwards held that the instructions should be taken, construed and interpreted as a whole; and that if other instructions presented the hypothesis omitted from the instruction complained of, it cured the *557 error. [Owens v. Railway, 95 Mo. 169 .] And so it has been ruled that an instruction directing a verdict for a plaintiff which wholly ignores contributory negligence of the defendant, is error (Hill v. Drug Co., 140 Mo. 433 ) unless, of course, that issue is presented in other instructions.

We are also of the opinion that it was prejudicial error to refuse defendant’s instruction “b”, wherein it was submitted that if defendant trimmed the roof after “firing the last shot therein prior to plaintiff’s injury,” and that trimming the roof after each shot was fired was the method adopted by defendant to protect its employees, and that to so trim it made the roof at that point reasonably safe, as defined in other instructions, and that defendant had no knowledge that the rock was likely to fall, or that it was loose or in a dangerous condition, the verdict should be for defendant. If the facts are believed to be as thus submitted, certainly there was no culpable negligence on defendant’s part.

The judgment is reversed and cause remanded.

All concur.