127 Ind. 50 | Ind. | 1891
The appellants were the owners of a coal mine and the appellee was one of their employees, engaged in mining coal. While engaged in the line of his service, and performing a duty assigned him by his employers, he was injured by the fall of an overhanging part of the roof of the mine. There is evidence tending to prove that the employers knew of the unsafe condition of the mine, and that they had been requested to make it safe, but negligently failed to take steps to make the mine safe or to avert the threatened danger.
It is established law that an employer is bound to use ordinary care and skill to make and keep the place where his employees are required to work in a reasonably safe condition. Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427; Taylor v. Evansville, etc., R. R. Co., 121 Ind. 124; Cincinnati, etc., R. W. Co. v. Lang, 118 Ind. 579 ; Brazil, etc., Co. v. Young, 117 Ind. 520; Louisville, etc., R. W. Co. v. Sandford, 117 Ind. 265; Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439 ; Pennsylvania Co. v. Whitcomb, 111 Ind. 212 ; Indiana Car Co. v. Parker, 100 Ind. 181 ; Cunningham v. Union Pac. R. W. Co., 4 Utah, 206; Consolidated Coal
It is, however, equally well established that an employee assumes all the risks incident to the service into which he enters.' Louisville, etc., R. W. Co. v. Sandford, supra; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20 (5 Am. St. Rep. 578).
But where the negligent breach of 'duty on the part of the employer augments the hazards of the service, the employee may, unless by voluntarily continuing in the employer’s service he has assumed such danger, hold the employer accountable for an injury caused by such negligent breach of duty. It is the risk of ordinary perils incident to the service that the employee assumes, not the hazard of extraordinary risks added by the failure of the employer to perform the duty enjoined upon him by law. An employer who assigns an employee to work in’ a particular place, or directs him to perform a special duty, must use reasonable care and skill to make it reasonably safe for the employee to perform the duty assigned to him. Cincinnati, etc., R. W. Co. v. Lang, supra, and authorities cited. In deciding a case somewhat similar to the present, the Court of Appeals said: “ When the master ordered the intestate to perform his work as a machinist in the trenches opened and prepared for him, he had a right to assume that the place had been made reasonably safe by the master through other and competent servants employed by him.” Kranz v. Long Island R. R. Co., 123 N. Y. 1. Many of the instructions given by the trial court substantially embody the principles we have stated, and so far as they do this there is, of course, nothing in them of which the appellants can justly complain.
If it were conceded that the “ mine boss” was the fellow-servant of the appellee, and not the representative of the employer, still his negligence would not absolve the employer, although it may have concurred with the negligence of the latter in producing the injury. Where the master is
This rule rests on solid principle. It is no more than bare justice to compel a wrong-doer to answer for the proximate consequences of his own negligence, and it would be to the last degree unjust to permit him to escape responsibility upon the ground that some one else was also guilty of culpable negligence. The law can not be reproached with such injustice as is involved in the assertion that a wrong-doing employer may shelter himself behind the act of one of his employees who, like himself, has been guilty of an actionable wrong.
The essential part of the fourth instruction given by the trial court reads thus : “ Th.e fact, if it is a fact, that Leyden had knowledge that the roof was in a dangerous condition does not necessarily preclude a recovery by the plaintiff. Knowledge is always an important matter for consideration, but it does not always establish contributory negligence. If one undertakes to pass a known danger so great that no person of ordinary prudence would voluntarily encounter it, then he is guilty of contributory negligence, for no person possessing knowledge of danger has a right to go into a place which ordinarily prudent men would avoid. If, however, the danger is known, but it is not of such a character
It may, perhaps, be true that if the instruction stood alone we should be compelled to reverse the judgment, inasmuch as it does, in itself, and considered apart from the other instructions, probably attribute an improper effect to the element of knowledge on the part of the employee, in that it treats his knowledge as affecting only the question of con-
The rule that the court is not bound to give an instruction unless it is correct as it is written, is well settled, and, under this rule, it has been often held that unless the instruction as asked is expressed in proper terms, the court may refuse to
It follows from this rule that it is not error to refuse an instruction unqualifiedly asserting that if the employee remains in the seryice after he acquires knowledge of the increased danger he can not recover. But the objection suggested is not the only one. It does not necessarily follow that knowledge that a master is not discharging his duty in making safe the place where he requires his employees to work will defeat a recovery by an employee injured by the master’s neglect of duty; to produce this result it must be also inferable that the breach of duty augmented the dangers of the service. An employee may know that the employer is not performing his duty, and yet not know that the perils of his service are augmented. It is not, it is true, necessary that the fact that the perils of the service were increased should be established by direct evidence; it is sufficient if there be evidence from which that fact can be reasonably inferred. Both the question as to whether there was a negligent breach of duty by the employer, and the question as to whether such a breach of duty increased the dangers of the service, are, in the great majority of cases, questions of fact. Hawley v. Northern Central R. W. Co., 82 N. Y. 370;
If the danger is so apparent that an ordinarily prudent man would have observed and heeded it, then, it is one which the^employee assumes, if with knowledge of its existence, and without any promise on the master’s part to remove the danger, he voluntarily continues in the service of his employer. This, as we have seen, is the doctrine of our cases, and it is the doctrine of many other courts. Reitman v. Stolte, 120 Ind. 314; Jenney, etc., Co. v. Murphy, 115 Ind. 566 ; District of Columbian. McElligott, 117 U. S. 621; Leary v. Boston, etc., R. R. Co., 139 Mass. 580; Eureka Co. v. Bass, 60 Am. Rep. 152; Woodley v. Metropolitan R. W. Co., 2 Ex. Div. 384.
If only one inference can be drawn from the facts, and the facts are uncontested, the question may be one of law; but where the facts are controverted, or where more than one inference may be reasonably drawn from the facts, the question is generally one of fact for the jury. Hough v. Railway Co., 100 U. S. 213; Wallace v. Western, etc., R. R. Co., 2 Am. St. Rep. 346; Baltimore, etc., R. R. Co. v. Walborn, post, p. 142. In whatever form the question of negligence arises it is ordinarily one for the jury wherever it involves a decision of a question of fact.
In cases where there may be more than one inference drawn from the facts established by the evidence, the questions as to what inferences shall be deduced are usually questions of mingled law and fact, inasmuch as they must be submitted to the jury under appropriate instructions as to the governing rule of law. In such cases the court instructs as to the law, and the jury, under the law as instructed by the court, determines the questions of fact. A long line of cases affirms and enforces this rule. Gagg v. Vetter, 41 Ind. 228 (13 Am. R. 322); Pittsburgh, etc., R. R. Co. v. Nelson, 51 Ind. 150; Louisville, etc., R. W. Co. v. Richardson, 66 Ind. 43; Louisville, etc., R. W. Co. v. Stevens, 87 Ind. 198; Lou
An employee has a right to presume that his employer has discharged his duty, but this rule does not go to the extent of exempting him from the duty of exercising reasonable care. He can not excuse himself from the duty of making a prudent and reasonable use of his faculties, or of heeding, with due care, facts open and visible to ordinary observation. He is not bound to exercise unusual care to discover defects caused by his employer’s negligence, but he is bound to conduct himself with reasonable care and prudence. Pennsylvania Co. v. O’Shaughnessy, 122 Ind. 588; Cincinnati, etc., R. W. Co. v. Lang, supra; Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378; Bradbury v. Goodwin, 108 Ind. 286; Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, and cases cited p. 573; Reitman v. Stolte, 120 Ind. 314, see p. 317.
Whether the appellee did use due care to ascertain the dangers of his working place was in this instance properly submitted to the jury by the instructions of the trial court,
The trial court did not err in refusing to enter judgment upon the answers to the special interrogatories propounded to the jury. A general verdict necessarily embodies the decision of the jury as to the right of the whole case upon the law and the evidence, while answers to interrogatories find only upon special questions of fact, and hence it is no more than reasonable and just to hold, as it has often been held, that the general verdict will stand unless the antagonism .between it and the special answers is so clear and strong as to preclude a reconciliation. Ohio, etc., R. W. Co. v. Trowbridge, supra; Town of Poseyville v. Lewis, 128 Ind. 80; Graham v. Payne, 122 Ind. 403; Indianapolis, etc., R. W. Co. v. Lewis, 119 Ind. 218; Smith v. Heller, 119 Ind. 212; Grand Rapids, etc., R. R. Co. v. Ellison, 117 Ind. 234; Chicago, etc., R. R. Co. v. Ostrander, supra; Cincinnati, etc., R. R. Co. v. Clifford, 113 Ind. 460; Redelsheimer v. Miller, 107 Ind. 485. There is no such antagonism between the general verdict and the special answers returned by the jury in this case.
Judgment affirmed.