65 Ind. App. 401 | Ind. Ct. App. | 1917
Appellee recovered a judgment against appellant for $2,000, damages for personal injuries received by him while at work in. appellant’s coal mine. The complaint was in two paragraphs upon which issues were joined by answer in general denial. The jury re
The controlling averments above set out clearly show that the first paragraph is based on a violation of the common-law duty to keep appellee’s working place reasonably safe and is good upon that theory. The second paragraph is apparently based upon the breach of the common-law duty to furnish a reasonably safe place to work and the breach of the statutory duty to furnish props and timbers.
Under its motion for a new trial appellant claims that instructions Nos. 6, 8 and 9 given by the court of its own motion are erroneous.
Appellant claims that instruction No. 8 is erroneous in that it is applicable to cases arising under the Employers’ Liability Act of 1911 (Acts 1911 p. 145, §8020a et seq. Burns 1914) only, and that that act has no application to injuries arising in coal mines. Since the trial of this case the Supreme Court and this court have recognized that an action may be maintained under the act of 1911 for injuries arising in coal mines. Vivian Collieries Co. v. Cahall (1915), 184 Ind. 473, 110 N. E. 672; Vandalia Coal Co. v. Shephard (1918) -Ind. App.-, 113 N. E. 767.
Appellant contends that this instruction leaves a question of law for the determination of the jury, namely, “What duty was required of the mine boss in respect to loose overhanging slate, coal or rock?” By this instruction the court left it to the jury to deter
Instruction No. 11, given at request of appellee, is objected to. This instruction correctly stated the law and was applicable to both the issues and the evidence.
These were proper elements to be considered by the
Several instructions were tendered by appellant and refused by the court upon which appellant predicates error. These instructions are drawn either on the assumption that certain facts were undisputed, or on an erroneous construction of the law, and are fully disposed of by our discussion of appellant’s objections to instructions given.
It is also contended that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law. Inasmuch as the evidence may not be the same on a retrial, we deem it unnecessary to discuss these questions.
Because of the errors in the instructions and in view of the apparent confusion as to the law applicable to the case made by the complaint, justice we believe demands an opportunity for a new trial. The judgment is reversed, with instructions to grant appellant’s motion for a new trial, and for further proceedings consistent with this opinion.
Note. — Reported in 117 N. E. 504. Mines and mining: violation of mining act, employe’s right of action, 9 L. R. A. (N. S.) 882, L. R. A. 1915E 557; duty of mine proprietor to provide safe place for employes to work, 87 Am. St. 564; liability of owner to servant for injuries caused by the falling of the mine roof, Ann. Cas. 1912B 577.