13 Ind. App. 98 | Ind. Ct. App. | 1895
The appellant is a corporation operating a coal mine in Sullivan County. The appellee as the servant of the appellant, was working in said mine, and while so employed was personally injured by falling rock or debris from the roof of said mine. This action was brought to recover damages for such injury. The complaint is in two paragraphs. In the first it is averred that the appellee was in the employment of the appellant as a servant, for hire, in its coal mine, his work consisting in laying down iron track in the mine; that on the day named the appellant ordered the appellee to leave his said work and regular line of service and to go to room No. 5 in said mine and assist and direct in clearing up the fall of debris in said room; that it was the duty of the appellant to construct, keep and maintain the room and passage ways, in which its servants were required to work and pass, in a safe and secure condition, but that in disregard of its duty in this respect; the appellant negligently suffered and permitted the roof in said room in which appellee was directed to work as aforesaid, to become insecure, unsafe, and in a dangerous condition, and negligently failed to secure the roof at said point by properly propping and timbering the same, or taking down the loose and dangerous portions thereof, notwithstanding the appellant had notice and knowledge of such unsafe and insecure condition long before the injury occurred; that on the day named, and in pursuance to orders and directions' of the appellant, given as aforesaid, appellee left his regular line of employment and went to work and to directing in clearing up the fall of debris in room No. 5 in said mine; that he had no notice or knowledge of the dangerous and unsafe condition of the roof in said room; that while performing said work and giving directions., as aforesaid, a large amount of rock or debris fell upon
The second paragraph is the same as the first, except that instead of charging the negligence directly to the appellant it is averred that on the day of the injury one Silas C. Risher was employed by the appellant as a mining boss in said mine, and as such it became and was his duty to visit and examine the working places-of the appellee at least every alternate day while appellee was at work in said mine, and to see that the working places of appellee and other workmen were properly secured by props and timbers, and were maintained in a safe and secure condition, and if he found any place or places where appellee was at work or required to be in an unsafe or insecure condition, not to-permit him to work in such place or places except for the purpose of repairing and making such place or places safe and secure; but that said Risher, in disregard of his duties as such mining boss unlawfully and negligently failed to perform any and all of his said duties in respect to the safety of the appellee’s working place as aforesaid; and that the appellant and said Silas C. Risher, as such mining boss, in utter disregard' of their duties hereinbefore set out, unlawfully and negligently suffered and permitted the roof of said room and entries to become insecure and dangerous, and failed to visit and examine and secure the said roof at said points by properly propping and timbering the same, or make the same safe and secure by taking down the loose and dangerous portions thereof, and to notify appellee of the insecure and dangerous condition of the roof where appellee was required to work and pass; that said Silas C. Risher had full and complete authority
The jury returned a special verdict, and upon it the court rendered judgment for the appellee. Error is predicated upon the court’s action in overruling the motion of appellant and sustaining the motion of appellee for judgment on the special verdict. The first objection urged to the special verdict is that it fails to show the ■appellee’s freedom from contributory negligence in connection with the sustaining of the'injury complained of. The appellant insists that instead of showing affirmatively the absence of appellee’s negligence, as the law requires the verdict to do, it actually discloses that he was guilty of such negligence. This insistence is based upon that portion of the special verdict from which it appears that during the time of his employment in appellant’s mine, prior to the date of his injury, the appellee had done other work than that for which he claims he was specially employed, such as putting in ■timbers for the support of the roof, and that he was a practical miner of twenty years’ experience, having filled the position of “mine boss” and being thoroughly familiar with the operation of the mine in all of its departments. With this knowledge and experience, it is urged, the appellee must have known of the imminent danger constantly threatening those at work about this mine from the falling of stone, slate and debris from the
After a careful consideration of the question, we are unable to agree with the learned counsel for' the appellant in the conclusions they draw from the facts found in the special verdict. Independently of any statute, it was the appellant’s duty to use at least ordinary care and skill to make and maintain the place where appellee and other employes were required to work, in a reasonably safe condition. The appellee, when he was ordered to go into room No. 5, had a right to assume that this had been done through some competent servant or servants in the employment of the appellant. Rogers v. Leyden, 127 Ind. 50. Of course the servant must use his faculties in ascertaining whether danger actually exists, if the same is patent or open to the view. But he is not bound to be looking out for latent and hidden dangers, nor is he charged with knowledge of the dangerous character of the place in which he is required to work, if it is the duty of the master to make it safe, for the servant is always justified in assuming that the master has performed his duty, and to act upon that
It is next contended by appellant’s counsel that the verdict further discloses that Silas C. Risher, the mining boss, was a fellow servant with the appellee; that his negligence in failing to render the place safe and secure where he required appellee to work, and in ordering him into said room when the room was in such an unsafe condition, was the negligence of a fellow-servant, for ’ which the appellant cannot be held responsible.
The jury in their special verdict found that the roof of room No. 5 in said mine, on the day of the injury and for a long time prior thereto, was in a dangerous and unsafe condition, and of such a character “that it was dangerous and unsafe at all times, all of which facts were well known to the defendant and its said mining boss, Silas C. Risher, on and during said 16th day of 'January, 1892 (the day of the injury), and for a*long time prior thereto. ”
It appears to us that the question of whether the mine boss was or was not a fellow-servant is not decisive of the appellant’s liability, in view of this finding. The appellant was required to use ordinary care in keeping the mine and the roof thereof in a reasonably safe condition. The failure to so keep the same by the appellant was culpable negligence, and the fact that the mine boss was also negligent would not excuse the appellant. The case of Rogers v. Leyden, supra, was, in many respects, analogous to the case at bar. It was an action by a miner against the owner of a coal mine, for
That this case correctly expresses the law, we entertain no doubt. It was so decided by this court in Hancock v. Keene, 5 Ind. App. 408, where it was said: ‘ ‘ The duty of the master to exercise ordinary care and skill concerning the place in which the servant is required to work is a continuing duty, and the master cannot escape responsibility for failure to keep such
See, also, Boswell Pers. Injury, section 215.
Many other authorities might be cited in support of the rule, but it is unnecessary to multiply them. That the mine boss was acting for the master when he gave directions to the appellee to enter the room, and that the appellee was justified in obeying the directions is not seriously questioned. We think the special verdict abundantly shows such negligence as will hold the appellant liable, whether the mining boss was a fellow-servant or a vice principal when he negligently failed to maintain the roof of appellant’s mine in a safe condition for the employes to work in. We have examined the cases cited by appellant’s counsel to the proposition that appellant is not liable in the present case, because the negligence complained of was that of a fellow servant, and do not think they sustain counsel.
One of the specifications of error is the overruling of the appellant’s motion for a new trial. It is insisted, under this head, that the evidence fails to support the verdict, and this has been assigned as a cause in the motion for a new trial. The appellant’s learned counsel strenuously contend that the evidence shows beyond
On cross-examination • of appellee, the appellant’s counsel asked him what was the duty of a miner, in that coal mine, with reference to examining the roof of an entry or room into which he was going to work. To this question the court sustained an objection. It is claimed by appellant’s counsel, in argument, that this was palpable error, for the reason that the appellant should have been permitted, under the law, to prove the rules of the company with respect of the duties of the
Exclamations and expressions of present pain and suffering from the injury complained of in this kind of action are always proper, although made some time subsequent to the receipt of the injury, and they are not regarded as self serving declarations or hearsay. Sturgeon v. Sturgeon, 4 Ind. App. 232.
Other questions of practice of minor importance are presented, but we do not deem it necessary to notice them in detail. The record discloses no error for which we feel authorized to reverse the judgment.
Judgment affirmed.