42 Ind. App. 232 | Ind. Ct. App. | 1908
In the first paragraph it was alleged, in substance, that the appellant was a corporation organized under the laws of this State and engaged in the business of mining and selling coal; that on August 30, 1905, it was the owner and engaged in the operation of a coal mine in the southern part of Parke county, Indiana, known as Superior Mine No. 2; that this mine at that time had an entry leading from the shaft in a northerly direction, known as the main entry north. The complaint also minutely describes the entry ways, their purposes and for what used, and also the air passageways, and further alleges that on August 30, 1905, the appellee was in the employ of the appellant, working for it in one of said air passageways, keeping the same clear and open to the required depth for use in the mine; that while thus engaged in the mine, at a point about twenty-five yards from the entrance to said passageway, and without warning to said appellee, or without any fault or negligence on his part, a large block of loose rock, weighing several tons, fell from the roof of said passageway onto said appellee, and injured him (describing his injuries). It is also shown that the roof in the passageway at the point where the rock fell was improperly braced, and that appellant had carelessly and negligently failed to brace the same, stating wherein such failure occurred, and that by reason of such failure to brace said roof said rock fell. Damages are alleged.
It is pointed out by both parties that the second para
In section eleven of said act (§8579 Burns 1908) it is provided: “The operator shall employ a competent mine boss, who shall be an experienced coal miner, and shall keep careful watch over the ventilating apparatus and the airways, and shall see that, as the miners advance their excavations, all loose coal, slate and rock overhead are taken down or carefully secured against falling therein on the traveling and airways,” etc.
In section twelve (§8580 Burns 1908) it is provided: “The mine boss shall visit and examine every working place in the mine, at least every alternate day while the miners of such places are, or should be, at work, and shall examine and see that each and every working place is properly secured by timbering and that the safety of the mine is assured. He shall see that a sufficient supply of timbers are always on hand at the miners’ working place. He shall also
It is contended that each paragraph of the complaint is insufficient, whether regarded as a complaint under this act or considered as a complaint at common law. Upon the trial, the cause was treated by the court and by counsel as an action under the statute; and the appellee cánnot be heard to claim that his pleading was. sufficient upon a theory wholly different from that upon which his judgment was recovered. In instructions to the jury asked by appellee, to which the appellant excepted, and which were assigned by appellant as reasons for a new trial, the overruling of which is assigned as error, express reference to the statute was 'made. The case was submitted to the jury as one arising under the statute.
“Where a pleading is susceptible of being construed upon various consistent theories,, or the predominating theory is dubious or uncertain, the theory adopted by the trial court, and upon which the cause proceeded and was tried, should be followed by this court.” Cleveland, etc., R. Co. v. DeBolt (1894), 10 Ind. App. 174, 176.
Where it appears, upon an examination of the record, that the trial court, in its instructions and in its rulings throughout the trial, treated the complaint as based upon a statute, instead of a cause of action at common law, the theory upon which the cause proceeded in the trial court will be the theory upon which the action is to be tested on appeal. The theory upon which the case was tried must control here. Louisville, etc., R. Co. v. Hughes (1891), 2 Ind. App. 68; Diggs v. Way (1899), 22 Ind. App. 617; Holliday v. Perry (1906), 38 Ind. App. 588; Carmel Nat. Gas, etc., Co. v. Small (1898), 150 Ind. 427; Oölitic Stone Co. v. Ridge (1908), 169 Ind. 639.
Turning to the several alleged defects urged upon our attention by the appellant, it is first contended that the com
. In the act of 1905, supra, involved in the case at bar, besides the provisions for special penalties in various sections, a general provision is made by section twenty-eight (§8598 Bums 1908) for all other violations, for which fines and imprisonment may be inflicted. It may be true, as suggested in this case, that there would ordinarily be greater probability of interference with the carrying on of the business of the mine by providing supports for the roof in places where the miners are actually engaged at work than in the entries and air passageways through which they merely pass in going to and from their work at the face of the coal, but if we are to indulge no inferences in aid of the pleading, and are to require a statement of every fact needed to bring the particular case within the statute, we can find no sufficient reason for distinguishing between a case of injury from unguarded machinery in a factory and a case of injury in a passageway in a mine for noncomplianee with a statute. In either case the fact should be made to appear by direct averment, or by a showing of facts to the same effect.
Judgment reversed, with instructions to permit the appellee to amend each paragraph of his complaint.
Roby, J., absent.