51 Ind. App. 165 | Ind. Ct. App. | 1911
— Common-law action by appellee to recover damages for personal injuries sustained while employed in appellant’s mine, and alleged to have been caused by appellant’s negligence in failing properly to support and prop a certain loose rock in the roof of the mine above appellee’s working place. Trial by jury resulted in judgment for appellee. The errors assigned and discussed arise on the motion for a new trial.
It is properly assigned as error that the verdict of the jury is not supported by the evidence. All the testimony in the ease was given by appellee’s witnesses, who were himself, his father, who was employed in the same mine, his wife, his physician, and William Dutell, who was working with him at the time of his injury. It appears from the evidence that appellee, a coal miner of about ten years’ experience, had been for a year employed by appellant to “pull pillars”, that is, before the final abandonment of the mine to remove the pillars of coal left to support the roof along entries and between them and other workings, and for two weeks he had been working at such labor with Dutell. Appellee was absent from the mine on the day before his injury, and on that day Dutell shot down from a certain pillar onto the floor of the mine a pile of coal four feet deep
The present case comes within the rule that “a servant has the right to rely on assurances that defects which he has complained of have been remedied, and is entitled to recover for injuries caused by the failure to repair as alleged unless the defects are such as to be apparent to one in the use of ordinary care.” 20 Am. and Eng. Ency. Law 130.
In 4 Thompson, Negligence §4665, the author, while discussing assumption of risk, states the rule thus: “If the servant complains to the master, or to the superintendent or
Instructions five, fourteen, nineteen and twenty-three, given at appellee’s request, were set out in full in appellant’s brief, and properly presented for consideration. We set out below instructions five and fourteen, as the error alleged in the giving of the others is the same which is said to appear in these.
(14.) “While the defendant was not the insurer of the safety of its employes against accident or injury, it was its
Appellant claims that the court in giving these instructions and instructions nineteen and twenty-three ignored the element of assumed risk, and that they come under the rule that an instruction which purports to instruct the jury on what state of facts a party may recover must include all the material facts necessary to a recovery. This principle is well established, but does not apply to the instructions under consideration. None of them purports to state to the jury what facts plaintiff must establish in order to recover, but each is intended to instruct the jury on one branch of the case. The fifth applies only to the issue of negligence, the fourteenth, nineteenth and twenty-third to the duty of the master to maintain a reasonably safe working place, and they correctly state the law on those propositions. None of them assumes to fix the basis on which appellee is entitled to recover, but only one element of that basis. Each of these instructions is a correct abstract statement of a general proposition of law applicable to any similar case between master and servant, and not an instruction based on the particular facts of the ease at bar, such as those which were disapproved by the court in the authorities cited by appellant. The jury was fully and completely instructed by other instructions given as to assumption of risk, and the trial court did not err in giving instructions five, fourteen, nineteen and twenty-three, at appellee’s request.
No reversible error appearing, the judgment is affirmed.
Note. — Reported in 96 N. E. 477. See, also, under (1) 3 Cyc. 349; (2) 26 Cyc. 1213, 1478; (3) 26 Cyc. 1516; (4) 26 Cyc. 1422; (6) 3 Cyc. 38S; (7) 2 Cyc. 1014; (8) 26 Cyc. 1491; (9) 38 Cyc. 1598; (10) 13 Cyc. 234. As to mining and the risks to servant thereto incident, see 87 Am. St. 573. As to the liability of a mine owner to a servant for injuries caused by the falling of the roof of the mine, see Ann. Cas. 1912 B 577.