64 Ind. App. 381 | Ind. Ct. App. | 1917
This was an action for damages for personal injuries received by appellee while employed as a driver in appellant’s coal mine. From a judgment in appellee’s favor for $750 appellant appeals and assigns as error the overruling of its motion for a new trial.
The second paragraph of complaint on which the cause was tried is predicated on the act of 1911. Acts 1911 p. 145, §8020a et seq. Burns 1914. Appellant answered by general denial.
It appears from the complaint that appellant in the operation of its mine used a wooden track and small coal cars thereon for the purpose of handling and hauling the coal as it was mined. On the day of the injury appellee was employed as a driver and while taking out a carload of coal the car ran off the track about
The specific defects charged are that the rails of the tracks were warped and uneven; that they stuck up and were not securely fastened at the ends, causing the cars to run zigzag fashion and greatly increasing the danger of the cars leaving the track; that the track was laid with a high projection about fifteen feet from the face of the coal, which proj ection was about a foot high and very abrupt and had the effect of throwing a car forward with great force and rapidity when it .was pulled over the projection from either direction; that the grade from this projection was very steep; that the car provided by appellant at the time of the injury was defective in that the wheels were worn, warped and cracked, were improperly attached, were loose and that they wobbled back and forth; and that the car was allowed to remain in that condition for a long time prior to the injury. It is also averred that the coal was carelessly and negligently loaded so that it was liable to and did slide forward out of the car.
The questions presented by appellant’s brief relate to the giving of, or the refusal to give, certain instructions. Of the instructions given and excepted to, Nos. 2, 3, 4, 6, 7, 9, 10, 11, 14, 17, 18, 19, 20, and 23 are discussed. We shall not attempt, however, to set out the instructions in full and will abridge and omit where the specific language used is not essential to render clear our discussion.
A proximate cause of a result is not necessarily the sole cause, for we may have concurring causes all of which are proximate. When one of the concurring causes of an injury is the negligence of the plaintiff, we speak of it as contributory negligence. “To constitute ‘contributory negligence,’ there must be a want of ordinary care on the part of the plaintiff and a proximate connection between that and the injury.” Indianapolis, etc., Transit Co. v. Edwards (1905), 36 Ind. App. 202, 74 N. E. 533; See, also, Columbia Creosoting Co. v. Beard (1909), 44 Ind. App. 310, 89 N. E. 321. The effect of the instruction, when read as a whole, was to tell the jury that, if they found that the defendant was guilty of negligence proximately causing the injury, they should find for the plaintiff, unless the evidence showed that he was guilty of negligence which concurred with that of the defendant in producing the injury. The same objection is made to instruction No. 18, and for like reason it was not erroneous or misleading.
Section 8580, supra, refers to those dangers peculiarly applicable to coal mines which are extra hazardous working places and, to keep such mines as free from danger as possible, the statute requires the giving of the notices specified therein, but this statute does not impose upon appellee the duty to report such defects as are relied on in this action. This conclusion, we think, must undoubtedly follow when the history of our mining legislation is considered in connection with a proper construction of the whole mining act of 1905.
A number of instructions upon the nonassumption of risk of the dangers and defects inherent or apparent by appellee were given and these are objected to by appellant. The instructions, while subject to some criticism, are not in conflict with the decisions of this and the Supreme Court construing the act of 1911, supra, in such particular. Standard Steel Car Co. v. Martinecz (1916), — Ind. App. —, 113 N. E. 244, 114 N. E. 94, and cases cited; S. W. Little Coal Co. v. O’Brien (1916), 63 Ind. App. 504, 113 N. E. 465, 114 N. E. 96, and cases
It was held in Standard Steel Car Co. v. Martinecz, supra, following the case last cited, that: “Where the employe, or the complaining party, in case ,the employe’s injuries resulted in .death, has proven a defect in the working place, tool, implement, or appliance furnished by the employer for the use of the employe and the consequent injury, a prima facie case has been made against the employer.”
There is some evidence to establish the material allegations of the complaint, both as to a defective track and with furnishing appellee with a defective car. Under the evidence in this case, contributory negligence was a question for the jury.
What we have said in disposing of the instructions given and objected to disposes of the questions presented on the instructions refused, and also the alleged errors in the admission and exclusion of evidence, in so far as they' could affect the substantial rights of appellant.
No available error being shown, the judgment is affirmed.
Note. — Reported in 115 N. E. 952. Excessiveness of verdicts in actions for personal injuries not resulting In death, L. R. A. 1915F 30, 16 Ann. Cas. 8; specifically as to injuries to legs, L. R. A. 1915F 308. See under (1) 26 Cyc 1507; (5) 26 Cyc 1492; (6) 13 Cyc 126.