The Domestic Block Coal Company v. Dearmey

Decision Date22 January 1913
Docket Number22,328
PartiesThe Domestic Block Coal Company v. DeArmey
CourtIndiana Supreme Court

Rehearing Denied June 3, 1913, Reported at: 179 Ind. 592 at 609.

From Superior Court of Vigo County; John E. Cox, Judge.

Action by McClelland DeArmey against The Domestic Block Coal Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under Clause 2, §§ 1394 Burns 1908, Acts 1901 p. 565.)

Affirmed.

J. T Walker and Lamb, Beasley, Douthitt & Crawford, for appellant.

Wymond J. Beckett, G. S. Payne and W. F. Elliott, for appellee.

OPINION

Morris, J.

This was an action by appellee against appellant, for damages, for personal injuries for alleged negligence, under § 12 of the mining act of 1905 (Acts 1905 p. 65, § 8580 Burns 1908). The trial court overruled a demurrer to the complaint, which action is here assigned as erroneous. There was a trial by jury, verdict for appellee in the sum of $ 3,000, and judgment thereon. Appellant's motion for a new trial was overruled, and this ruling is also assigned as error.

So much of the statute, as is applicable to the case, reads as follows: "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 miner's working place. He shall also see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work, are taken down or carefully secured." § 8580 Burns 1908, Acts 1905 p. 65, § 12.

The complaint is in one paragraph and alleges that at and prior to the time of the injury, appellant was engaged in mining coal by means of a shaft, sunk from the surface to the coal bed, and then by constructing roads or entries, through the bed from which openings are turned, called rooms and from which the coal is mined; that fifty men, including appellee, were employed in the mine; that appellee was engaged in operating a machine, and his duties required him to move the machine from one part of the mine to another, and operate the same in mining coal; that appellant's mine boss directed him to work in room No. 7, which had been driven in about 200 feet from the entry, to the face of the coal, and appellant had constructed, in the room, a track about 180 feet long, consisting of rails laid on ties, constituting a roadway, or travel way, from the entry, into, and through, the room, to the face of the coal; and that this travel way was the only road or way, by which the mining machine could be moved into and through the room, and to the face of the coal; that when injured, he was moving the machine in the room, along the track, preparatory to cutting coal; that from the end of the travel way, to the face of the coal, a distance of from fourteen to twenty feet intervened; that he had moved the machine to the end of the travel way, and was moving the same into the space between the end of the travel way and the face of the coal, and while so doing, and while he was on the travel way, he was injured by reason of a large and heavy piece of slate or stone, falling on him from the roof of the room.

The allegations relative to appellant's negligence, and appellee's lack of knowledge of danger, are as follows: "And plaintiff says that he was injured by reason of the negligence of said mine boss in failing and neglecting to examine said roof of said room No. 7 with proper care every alternate day as was his duty so to do, and by reason of the negligence of said mine boss in failing to discover that said large piece of slate or stone in the roof of said room became loose and in a dangerous condition, and was likely to fall and injure the miners, including this plaintiff, who worked in said room and traveled back and forth on said travel way, and that he was injured without his fault as aforesaid by reason of the negligence of said mine boss in failing to discover and secure and make safe the roof of said room by taking down said loose and dangerous slate or stone, and that defendant's mine boss negligently failed to notify this plaintiff that the said roof of said mine was defective, and that a large and heavy piece of slate or stone was likely to fall therefrom and injure this plaintiff, and thereby permitted this plaintiff to go into said room while said roof was in said dangerous condition, and thereby negligently caused and permitted this plaintiff to pass into said room under said defective and dangerous part of said roof, and was thereby injured as aforesaid without his fault. And plaintiff says that defendant's said mine boss knew that said roof was insecure and defective, and was in a condition to fall at any time, and knew that said condition of said roof was dangerous, and was likely and liable to fall and injure the employes of the defendant in said room, including this plaintiff, and had notice and knowledge of said condition of said room in said mine from two to six days before the happening of the accident to this plaintiff, as herein alleged, and in ample time to have taken down said slate or stone from said roof, and during all of said time said miners were at work in said room and working place of said mine. And plaintiff says that defendant's said mine boss negligently failed to take down said loose slate or stone as aforesaid, and negligently failed to notify this plaintiff of said dangerous condition of said roof, and plaintiff says that said loose and dangerous slate or stone in said roof could have been taken down from the roof of said room by said mine boss by means of picks and crowbars and other instruments used for said purpose in said mine and removed from said room without in any way interfering with the proper working of said mine, or without interfering in any way with the mining of coal in said mine. And plaintiff says that he had no notice or knowledge that said roof was defective and dangerous and likely to fall and injure him at any time prior to the happening of said accident as herein alleged; and plaintiff says that by reason of the negligence of said mine boss, as aforesaid, said heavy piece of slate or stone fell from the roof of said room No. 7, as aforesaid, and injured this plaintiff, as aforesaid, without his fault."

It is earnestly contended by appellant that considering the complaint on the theory most favorable to appellee--that of charging a violation of that part of the act which requires the mine boss to "see that all loose coal, slate and rock overhead wherein miners have to travel to and from their work are taken down or carefully secured"--it yet fails to state facts sufficient to repel the demurrer, because it is not directly averred that the slate, or stone, was loose, or dangerous, prior to the accident, or that appellant failed to perform any duty owing to appellee, or that it had any notice of the danger, or what was the proximate cause of the injury. Appellant insists that the absence of direct averments of facts cannot be deemed as supplied by recitals, conclusions or arguments. On the other hand counsel for appellee assert that under the liberal provisions of our code this court would not be warranted in reversing the judgment because of the defective condition of the complaint.

Our code of civil procedure, adopted in 1852, was modelled after that of the state of New York, and contains the following provisions: Sec. 47. "All the distinct forms of pleading heretofore existing, inconsistent with the provisions of this act, are hereby abolished; and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are modified as prescribed by this act." 2 R. S. 1852, p. 37, § 341 Burns 1908, § 336 R. S. 1881.

Sec. 49. "The first pleading on the part of the plaintiff is the complaint. The complaint shall contain * * *. Second. A statement of the facts constituting the cause of action, in plain and concise language, without repetition and in such manner as to enable a person of common understanding to know what is intended." 2 R. S. 1852 p. 38, § 343 Burns 1908, § 338 R. S. 1881.

Sec. 90. "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties * * *". 2 R. S. 1852 p. 45, § 385 Burns 1908, § 376 R. S. 1881.

Sec. 101. "The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect." 2 R. S. 1852 p. 50, § 407 Burns 1908, § 398 R. S. 1881.

Sec. 580. "No judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance, or imperfections contained in the record, pleadings, process, entries, returns or other proceedings therein which by law might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court * * *." 2 R. S. 1852 p. 162, § 700 Burns 1908, § 658 R. S. 1881.

A consideration of the above provisions, induces the conclusion that it was the intention of the legislature, in framing them, that all the material facts, constituting a plaintiff's cause of action, should be stated directly concisely, and in plain language, so as to meet the comprehension of persons of common understanding; it, however, urges the further conclusion, that it was contemplated...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT