32 Ind. App. 33 | Ind. Ct. App. | 1903
Appellee brought this action under §7472 Burns 1901, §5480m Horner 1901, against appellant, a corporation duly organized under the statute of the State of Indiana, engaged in mining and shipping coal from its plant in Greene county, in this State, to recover damages for personal injuries alleged to have been suffered by reason of the negligence of appellant.
The cause was put" at issue by general denial. A trial resulted in a verdict and judgment in favor of appellee for $700. With the verdict the jury returned answers to interrogatories.
The assignment of errors questions the sufficiency of the complaint, the action of the court in overruling appellant’s motion for judgment on the answers to the interrogatories notwithstanding the general verdict, and the overruling of appellant’s motion for a new trial.
•The complaint is lengthy, but may be fairly summarized as follows: Appellant was the owner and operator of a coal mine in which there was a main entry running west from the bottom of appellant’s coal shaft some 300 or 400 yards; that there was also another main entry running east from-the bottom of the shaft several hundred feet. Two entries were driven from these east and west main entries as follows: One to the south off the main east entry, and one to the south from the main west entry running parallel. Some distance from where these two parallel south entries left the east and west main entries, two working rooms had been turned off opposite each other, — one running toward the west and the other running toward the cast. Appellant mined out the coal from the two rooms known
We need only refer to the recognized rule that every presumption is indulged in favor of the general verdict, and that special findings prevail over the general verdict only when there is an irreconcilable conflict between the
The first, second, and third reasons for a new trial are, respectively, that the verdict is contrary to law, contrary to the evidence, and is not siistained by sufficient evidence.
The following facts are shown by the evidence: On the 4th day of October, 1901, William Peach was working in the .mine of the L. T. Dickason Ooal Company, at Linton, Indiana, and had been working there since the June before. He was fifty-one years old, and for- over forty years he had worked as a coal miner in different coal mines. He was a practical coal miner, and thoroughly understood the business of mining coal in all of its departments. During the time he was working for the appellant coal company he had worked at either jerry work or machine work. On Priday, October 4, while working his machine, the machine became disabled, and Peach was not able to mine -coal with it. He did- not work on Saturday, but on Sunday evening there was some cleaning up to do in room No. 5 on the first south entry off the east entry of the coal mine. Peach wanted work, and was given the job as assisting Charles Board, William Stevenson, and E. T. Jones. The evidence clearly discloses that William Peach was not taken away from his regular work and sent elsewhere, but that he desired to do the work he was engaged in at the time he was hurt. The work was simple, and consisted in the act of shoveling some fallen slate from off the track in room No. 5, and also taking from the track in said room No. 5 a large piece of slate that had fallen thereon. In removing the slate from the track they edged it up on the end and rested it against one of the props.. They then ascertained that the mining machine could not pass over
Appellee testified that at the time of the accident ho was working as a jerry man; that a" part of his dirty as jerry man was to move the slate off the track; that it was customary for jerry men at work in a mine to examine the roof, and see if it was safe. ITe wore a cap with a
Counsel for appellant rely strongly upon Davis Coal Co. v. Polland, 158 Ind. 607, in which the assumption of risk, under the statute, and contributory negligence are discussed and distinguished. The foregoing opinion is founded upon the facts exhibited by the record, and is not in conflict with Davis Coal Co. v. Polland, supra.
It follows that the evidence is not sufficient to sustain the verdict. It is not necessary to consider other alleged errors.
Judgment reversed, with instruction to sustain appellant’s motion for a new trial.