16 Ind. App. 9 | Ind. Ct. App. | 1896
The appellee’s complaint alleges that the appellant is the owner of and operating a coal mine near the town of Linton, in Greene county, Indiana, known as the Summit Coal Mine, and employs men therein, in the business and work of mining coal; that at the time of the injuries hereinafter mentioned, and long before, the appellee was an
To this complaint the appellant demurred, and the overruling of the demurrer is assigned as error.
The complaint is not open to the objections urged against it. It was not necessary to aver that the appellee did not know that a shot was about to be fired in the room adjoining that in which he was seated, and that therefore he had, and could have had, no knowledge of the impending danger. There is a general averment, as we have seen from the complaint, of the freedom of the appellee from contributory fault. This is sufficient, unless the facts pleaded in detail show that he was guilty of negligence, notwithstanding such general averment. Chicago, etc., R. R. Co. v. Smith, 6 Ind. App. 262. No question is.raised as to the sufficiency of the complaint on the subject of the assumption of the risk, and we are not required therefore to go into that question.
No other objections to the complaint are pointed out.
The overruling of appellant’s motion for a new trial is assigned as error. It is insisted that the court gave' erroneous instructions, the giving of which was made a cause in the motion for a new trial.
Instruction No. 3 1-4 is complained of as not stating the law correctly. In it the jury was instructed that a servant is not bound to inspect the premises for latent defects, and where he has no actual knowledge he is chargeable with a knowledge of such defects only as would be reasonably apparent, without inspection, to one who was giving due and reasonable atten
It is also complained that this instruction is not full enough. If this be true, it being correct as far as it goes, the appellant should have requested further instructions upon this point so as to meet its view of the law. Keller v. Reynolds, 12 Ind. App. 383.
The next instruction to which objection is made is as follows: “3 1-2. Contributory negligence on the part of the servant would not prevent him from recovering damages which he otherwise might be entitled to if by the exercise of ordinary care on the part of the master the consequences of such servant’s negligence might have been avoided.”
The general rule is well settled that contributory negligence of the plaintiff will defeat an action for damages sustained by him on account of the negligence of the defendant. There is, however, one well recognized exception to this rule, viz: when the contributory negligence is not contemporaneous and only "a remote cause of the injury, the plaintiff can recover, if the defendant, by the exercise of ordinary care, might have avoided the injury. A recent authority states the doctrine on this point as follows: “Although contributory negligence may exist, yet it will not disentitle the injured party from recovery, if, by the exercise of ordinary care on the part of the defendant, the consequences of such contributory negligence might have been avoided.” Bailey Master’s Liability, p. 445. The learned author, in support of the text,
“A remote fault in one party does not of course dispense with care in the other. It may even make it more necessary and important, if thereby a calamitous injury can be avoided, or an unavoidable calamity essentially mitigated. Common justice and common humanity, to say nothing of law, demand this; and it is no answer for the neglect of it to say that the complainant was first in the wrong, since inattention and accident are to a greater or less extent incident to human affairs. Preventive remedies must therefore always be proportioned t.o the case in its peculiar circumstances to the imminency of the danger, the evil to be avoided, and the means at hand of avoiding it. And herein is no novel or strange doctrine of the law; it is as old as the moral law itself, and is laid down in the earliest books on jurisprudence.” Isbell v. New York, etc., R. R. Co., 27 Conn. 404, 71 Am. Dec. 78.
“An apt illustration of the rule,” says Judge Bailey, “is found in Austin v. New Jersey Steamboat Co., 43 N. Y. 73, 3 Am. Rep. 663. The facts were that a barge of the plaintiff became grounded in the Hudson river. A
The same doctrine is declared by the Supreme Court of Ohio, in Cincinnati, etc., R. W. Co. v. Kassen, 49 Ohio St. 230, 31 N. E. 282, 16 L. R. A. 674.
Our own Supreme Court has also recognized the principle alluded to. Evansville, etc., R. R. Co. v. Hiatt, 17 Ind. 102; Evans v. Adams Express Co., 122 Ind. 362, 7 L. R. A. 678.
It will be seen by an examination of the cases referred to that an instruction of the character of the one complained of in the present case is proper only
The court having failed to qualify the instruction so as to bring the case within the exception to the general rule, we must hold that the giving of it in the form in which it was given constitutes reversible error.
Judgment reversed, with directions to grant appellant’s motion for a new trial.