166 Ind. 290 | Ind. | 1906
—This was an action instituted by appellee against appellant to recover damages for personal injuries sustained while in the employ of the latter as a coal miner. The cause was tried upon an amended complaint consisting of three paragraphs, the first and second of which are based on §7473 Burns 1901, Acts 1891, p. 57, §13, of the act relating to coal mines. This section declares a liability against the owner, operator, agent or lessee of a coal mine for any injury to person or property occasioned by any violation of this act, or for any wilful failure to comply with its provisions.
The complaint may be summarized as follows: The first paragraph alleges that the defendant coal company is a corporation duly organized, etc., and is engaged in mining coal in Olay county, Indiana, by means of shafts, etc., a description of the method of operation being stated. Said defendant at and prior to the time of the injury in question had in its employ over one hundred men, including the plaintiff herein. It was the duty of the defendant to use reasonable care and diligence in furnishing the plaintiff with a safe place in which to perform his work. It was also its duty under the statute to employ a competent mine boss. It was the latter’s duty to visit and examine every working place in defendant’s mine on every alternate day, and to examine and see that every such place was properly secured by props and timber, and that the safety of the mine was thereby secured. It was the further duty of the mine boss to see that a sufficient supply of props and timber was always on
The second paragraph contains all of the material allegations of the first, and in addition avers that it was the duty of the defendant to furnish a “bank boss” to see that all working places were made safe; that while it did have such bank boss in its employ he failed and neglected to do his duty, etc. The third paragraph declares upon 'the common-law liability of the master,- and proceeds upon the theory that when the latter has knowledge of a defect in the working place of his employe which renders it unsafe, and where such defect is of a character that it may escape the notice or observation of the employe, it is the duty of the master to notify the latter, and, failing to do so, he is liable for any injury which the employe may sustain by reason of such defect. After setting forth the defective condition of the roof of the room of the mine where the plaintiff was injured as alleged in the first and second paragraphs, it alleges that the defendant had full knowledge of such defects, and that the loose and unsafe condition of the roof could have been easily ascertained by in-, spection, but was of such a character as to show no outward defects or indications of its unsafe condition, and was of such a character as the plaintiff was liable to overlook; that by reason thereof it became and was the duty of the defendant to notify the plaintiff thereof; that neither the defendant nor any one else notified the plaintiff of the defects in said roof, nor did he, at the time he sustained said injury, or prior thereto, have any knowledge or notice of the defects in said roof, or of its unsafe condition; that of these defects and unsafe condition the defendant had full knowledge, and, well knowing that the plaintiff was wholly ignorant thereof, defendant ’ did on February 13, 1900, direct the plaintiff to enter said room and working place to perform his work, all of which the plaintiff did in
The appellant moved that the lower court compel the appellee to make his complaint more specific, in this: “That he be required to state in each paragraph the particular kind of work upon which he was engaged and the manner in which he was performing said work at the time the alleged injury occurred.” This motion the .court denied. Thereupon appellant unsuccessfully demurred to each paragraph of the complaint. The answer was a general denial. The case was tried by a jury and a general verdict returned in favor of appellee, assessing his damages at $7,500. Over appellant’s motion for a new trial judgment was rendered on the verdict.
The assignments of error herein are predicated upon the rulings of the court in denying the motion to make the complaint more specific, in overruling the demurrer to each paragraph of the complaint, and in denying the motion for a new trial.
There is evidence to prove that there was nothing in the appearance of the stone which fell and injured appellee to indicate to him that there was any danger of its falling. It is true that it may be said that from the appearance and condition of the stone which he and his associate, Miller, removed, and from what Miller said in respect to its being a “bad stone” and must come down, appellee was notified that so far as that particular stone was concerned it was unsafe or dangerous, but, to reassert, there is positive evidence to show that appellee had no knowledge that the stone which fell and injured him was dangerous or liable to fall at any time in the near future. In the absence of undisputed evidence to prove that the act of removing or pulling down the stone in controversy proximately caused or contributed to the fall of the other under the circumstances,, the case presents a question of fact and not one of law; consequently that question in this appeal must be left as determined by the jiuy in the lower court.
Certainly, under the evidence in the case at bar, when tested by the rule affirmed, it can not be asserted that there is no room for two different inferences or conclusions to be deduced by reasonable minds on the issue of appellee’s contributory negligence. It is manifest, we think, that the evidence in the case bearing upon that issue is of such a character as to present a question of fact for the determi
Counsel assert that this charge states the theory of appellant’s defense to the action, and that it is in perfect harmony with §7472 Burns 1901, Acts 1897, p. 168, §4, upon which it is predicated, and should, therefore, have been given. This section, which is a part of the act pertaining to coal mines, is as follows: “That the mining boss shall visit and examine every working place in the mine, at least every alternate day while the miners of such place are, or should be at work, and shall examine and see that each and every working place is properly secured by props and timber and that safety of the mine is assured. He shall see that a sufficient supply of props and timber are always on hand at the miner’s working places. He shall also see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work are carefully secured. Whenever such mining boss shall have an unsafe place reported to him, he shall order and direct that the same be placed in a safe condition; and until such is done no person shall enter such unsafe place except for the purpose of making it safe. Whenever any miner working in said mine shall learn of such unsafe place he shall at once notify the mining boss thereof and it shall be the duty of said mining boss to give him, properly filled out, an acknowledgment of such notice in the following form: I hereby acknowledge receipt of notice from - of the unsafe condition of the mine as follows: - dated this - day of-, 18—. -, Mining Boss. The possession by the miner of such written acknowledgment shall be the proof of the receipt of such notice by said boss whenever such question shall arise; and upon receipt of such notice such mine boss shall at once inspect such place and proceed to put the same in good and safe condition. As soon as such unsafe place has been repaired
Before especially considering the instruction in controversy, it becomes necessary to refer to some of the par-' ticular charges given by the court, at the request of appel-. lant, relative to the assumption of risk on the part of appellee. By instruction two the court substantially advised the jury that if they found from the evidence that the place in which the plaintiff was working at the time he was injured was unsafe and dangerous, and that said condition was known to him at the time, hut without any direction or order from the defendant he voluntarily undertook to make the place safe, and while engaged in removing the dangers and in consequence and by reason of his efforts to make such working place safe he received the injury for which he seeks to recover, then and under these circumstances the court informed the jury that the plaintiff assumed the risk and the defendant was not liable.
By charge eight the jury were advised that if they found from the evidence that a portion of the room in which plaintiff was working when injured was in a defective and dangerous condition; that such fact was known to the plaintiff or was so apparent that he, by the exercise of ordinary care, might have' known it, and without any orders or directions from the defendant, he at his own volition undertook to remedy such defect and remove the danger by taking down that part of the roof shown to he dangerous; that he did take down such defective roof and by reason and as a consequence thereof he loosened another part of the roof which fell upon and injured him, then, said the court, there can he no recovery, because in voluntarily attempting to take down a portion of the roof plaintiff assumed the risk of all injuries occasioned thereby.
It is evident, we think, that by these instructions, and by others given at the request of appellant along the same lines, all features of appellant’s defense under the rules at common law in regard to the assumption of risk by appellee, so far as the same can be said, under the evidence, to be involved, were fully covered. Appellant certainly then has no grounds for complaint that its theory under the evidence in respect to the assumption of risk at common law was not fully presented to the jury under the instructions given upon its own request.
Under instruction eleven, as formulated, the provisions of the statute hereinbefore set out were so construed in effect as to have read therein that a miner on learning of an unsafe place was not only required at once to notify the mine boss of-the unsafe place, but that it was made his duty under the statute at once to cease working in such unsafe place. By the latter portion of the charge which is introduced by the word “but” the jury were to be advised as a mat
Davis Coal Co. v. Polland (1902), 158 Ind. 607, 92 Am. St. 319, was an action by a miner for personal injuries imputed to a violation by the coal company of the same statute upon which this action is based, by reason of its failure to provide safeguards as required by said act. Baker, J., speaking for this court in that appeal, said: “Assumption of risk is a matter of contract. Contributory negligence is a question of conduct. If appellee were to be defeated by the rule of assumed risk, it would be because he agreed, long before the accident happened, that he would .assume the very risk from which his injury arose. If appellee were to be defeated by the rule of contributory negligence, it would be because" his conduct, at the time of the accident and under all of the attendant circumstances, fell short. of ordinary care. If the one circumstance of the employe’s knowledge of the employer’s failure to provide the statutory safeguards were held, as a matter of law, always to overcome the other circumstances characterizing the employe’s conduct at the time of the accident, assumption of risk would be successfully masquerading in the guise of contributory negligence. If assumption of risk is the issue, knowledge of defective conditions and acquiescence therein are fatal. If contributory negligence is the issue, knowledge of defective conditions and acquiescence therein may be fatal, may be not, depending upon whether a person of ordinary prudence, under all the circumstances, would have done what the injured person did. If the risk is so great and immediately threatening that a person of ordinary prudence, under all the circumstances, would not take it, contributory negligence is established. If the risk is not so great and immediately threatening
In this latter case the plaintiff was held to have been guilty of contributory negligence in failing to obey a special rule established by the coal company under and in pursuance of the provisions of the coal miners’ act of parliament. The rule in question is as follows: “If from accident or any other cause miners are at any time unable to find a sufficient supply of timber at place appointed, they are expressly forbidden to remain at their working places.”
We have said all in respect to the provisions of §7472, supra, that we deem essential' in this case. It is clear under the decision of this court in Davis Coal Co. v. Potland, supra, and the other authorities cited upon the question, that instruction eleven placed the result of a violation of the statute on the wrong ground, and for that reason alone it was not a proper interpretation of the law, was misleading, and, therefore, the court’s refusal to give it was not error.
It is true that it may be said that the condition of stone number one, the one which was removed by appellee and his associate, so far as it was concerned, indicated danger, but aside from the condition of this stone there is no undisputed evidence to show that other parts of the roof were obviously dangerous, or that appellee knew, or had ascertained, that his working place, aside from the stone which was removed, was in other respects unsafe or dangerous. As shown by the evidence, he was sent or directed by the mine boss to work in the place in which he was injured. Under the circumstances he had the right, therefore, to assume that such place had been made safe in all respects, as required by law, unless he knew or ascertained to the contrary. In respect to these questions the jury were fully instructed by the court. They were under the evidence questions solely for the determination of the jury. The jury decided them adversely to appellant, thereby virtually eliminating the removal of stone number one as a factor
Having carefully considered all of the questions properly presented by appellant’s counsel, we discover no error in law to justify a reversal. The judgment of the Clay Circuit Court is therefore affirmed.