187 Ind. 701 | Ind. | 1918
— This action is for damages on account of the death of appellant’s decedent, who was her husband, caused by alleged negligence of the defendants, who are alleged to have owned and operated a coal mine, wherein appellant’s decedent was employed as a miner.
Two paragraphs of the complaint are based upon the “Five-Man Act” (§8020a et seq. Burns 1914, Acts 1911 p. 145; and the third paragraph upon common-law liability. The error assigned and relied upon is that the court improperly directed the jury at the close of appellant’s evidence to find for the defendants.
Plaintiff’s evidence showed: That a rock fell from the roof of the mine directly over the place where appellant’s decedent was working; that said rock formed a part of the roof, and was of the same color as the other parts of the roof; that it was approximately nine feet long, six feet wide and two and one-half feet thick, and weighed between six and seven tons; that it extended about half of its length into the working face of the coal, and there rested upon unremoved coal; that the outer end of it rested upon at least two props placed to support the roof of the room which were of proper size and strength; that no person about the mine had actual knowledge of its presence; that there was no indication of its presence, or of danger therefrom, until it dropped; that it was so firmly imbedded in the roof that striking it with a pick — an approved and ordinary test — or. other like examination of the roof, would not have disclosed its presence; that there were in place in the room supporting the roof all props of the proper size and character that could' be placed therein and
If the facts thus shown were submitted to the jury, and the jury should find in favor of the plaintiff, the trial court, in the proper exercise of its powers and duties, would be required to set aside the verdict, because there is no tendency in any fact to show that the employer was negligent.
The judgment is affirmed. ,
Note. — Reported in 121 N. E. 81. Liability of mine owner to servant for injuries caused by falling of mine roof, Ann. Cas. 1912B 577. See under (1, 2) 26 Cyc 1417; (3) 26 Cyc 1187.