48 Ind. App. 136 | Ind. Ct. App. | 1911
Appellee brought this action against appellant to recover for personal injuries received by him while in the employ of appellant, as a shot firer in its coal mine, through the alleged negligence of appellant in failing to provide a safe place in which to work, and through its failure to perform the duties imposed upon it by statute.
The complaint, as originally filed, consisted of three paragraphs, the first of which was dismissed at the trial. The second, omitting the formal parts, as to the nature and organization of the appellant, and the description of appellant’s mine, substantially alleges that on October 1, 1907, and prior thereto, appellee was employed by appellant and the miners at work in appellant’s said mine, as a shot firer,' having been duly elected to said position by the miners of said mine, and prior to and at the time of said election he was employed by appellant as a miner in said mine; that at the time of the injury appellee was firing the shots in a room running in a westerly direction off the second south
It is further averred that appellee, at the time he sustained said injuries, was in the exercise of due care, and had no knowledge whatever of the dangerous condition of the partition of coal between said rooms; that he received said injuries without any fault or negligence on his part, and that said injuries were caused solely by the aforesaid negligence of the appellant.
The third paragraph of complaint is the same as the second, except that in respect to the employing of appellee as a shot firer it alleges that appellee was employed by the miners working in the mine, with the knowledge and consent of appellant, and that appellant paid the miners one-quarter of a cent a ton for each ton of coal mined by them, to be applied by the miners on appellee’s wages as a shot firer.
A demurrer for want of facts was overruled to each of said paragraphs, and issues were formed by answer in general denial. A trial was had by jury, resulting in a verdict in favor of appellee for $1,725. Over appellant’s motion for a new trial, judgment was rendered thereon.
The errors assigned and relied on for reversal in this court are (1) the complaint does not state facts sufficient to constitute a cause of action; (2) the court erred in overruling appellant’s demurrer to the second paragraph of complaint; (3) the court erred in overruling appellant’s demurrer to the third paragraph of complaint; (4) the court erred in overruling appellant’s motion for a new trial.
The objections to the second paragraph of complaint, are (3) that it does not contain the averment of facts upon which there arises any duty on the part of the master to do the things alleged to have been omitted; (2) it sets forth facts upon which it appears that appellee was not a servant of appellant; (3) that appellee is not shown to have had1 any right to enter the mine, and to act therein as shot firer;
The negligence alleged in each paragraph is twofold: (1) In failing to discharge a common-law duty, and (2) the violation of a mandatory provision of section twelve of the act of April 15, 1905 (Acts 1905 p. 65, §8580 Burns 1908). Hymera Coal Mining Co. v. Mahan (1909), 44 Ind. App. 583.
The same reasons are urged against the third paragraph of complaint. What has been said concerning the sufficiency of the second paragraph applies with equal force to the
In addition, it is insisted that said third paragraph alleges that appellee was employed by the miners, and entered the mine as their servant, with the knowledge and consent of appellant, and that appellee was a mere licensee. It is provided by §8610 Burns 1908, Acts 1907 p. 347, §9, “that at any coal mine in the State where the miners working therein so elect, persons may be employed to act as shot firers, and their wages shall be paid by the miners working therein.”
It appears from the allegations in this paragraph of complaint that the miners working in the mine of appellant attempted to take advantage of this provision of the law, and elected appellee to such position. The allegations show also that appellant paid certain sums of money to the miners to pay to the person holding the position of shot firer in its mine. Appellee was engaged in performing an indispensable part of the mining operations being carried on in appellant’s mine, a part of the business of mining for which the miners were directly employed by appellant. Appellant, with full knowledge of appellee’s presence in the mine as shot firer, owed him the same duty it owed to the miners. See authorities heretofore cited. The demurrer was properly overruled.
Instruction four, given at the request of appellee, relates to the duty owing to appellee as shot firer in appellant’s mine, and was a correct statement of the law.
The question as to the negligence of appellant and the contributory negligence of appellee was properly submitted
Judgment affirmed.