Antioch Coal Co. v. Rockey
| Decision Date | 01 November 1907 |
| Docket Number | No. 2O,869.,2O,869. |
| Citation | 169 Ind. 247,82 N.E. 76 |
| Parties | ANTIOCH COAL CO. v. ROCKEY. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sullivan County; A. B. Harris, Judge.
Action by William Rockey against the Antioch Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.Jno. S. Bays and Fred F. Bays, for appellant. Slinkard & Slinkard, for appellee.
Appellee commenced this action in the Green circuit court to recover of appellant company for personal injuries sustained by him while at work in its coal mine. The venue was changed to the Sullivan circuit court. A demurrer to the complaint for insufficiency of facts was overruled. Answer the general denial. Trial by jury. Verdict returned in favor of appellee, assessing his damages in the sum of $600. Motion by appellant for a new trial, assigning the statutory grounds and that the court erred in not requiring the plaintiff, William Rockey, upon his cross-examination, to answer the following questions propounded by appellant: First. “Is not tapping the safest way to determine whether or not overhanging slate is loose and dangerous?” Second. “You are a practical coal miner, are you not?” The motion for new trial was denied, to which appellant excepted. Thereupon the court rendered judgment upon the verdict. The errors assigned for reversal are predicated, first, upon the overruling the demurrer to the complaint; second, in denying the motion for new trial. The complaint is in one paragraph, and among other facts charges that the defendant, the Antioch Coal Company, on August 20, 1903, and prior thereto, was a corporation, duly organized under the laws of the state of Indiana, for the purpose of mining coal. On said day, and for some time prior thereto, it was engaged in Green county, Ind., in mining coal by means of a shaft sunk from the surface of the earth to the bed of coal beneath, and by means of driving entries to the coal from which entries rooms were turned. It is averred that the defendant coal company had in its employ, engaged in mining coal in its said coal mine, 10 men and over. On said 20th day of August, plaintiff, as alleged, was in the employ of the defendant as a coal miner, engaged in its said mine in mining coal, in a room and entry therein. The pleading, after averring what was the duty of the defendant, under the law, in regard to furnishing the plaintiff, its servant, with a safe place in which to perform his work, and alleging other facts in respect to the duty of its mining boss to visit and examine the working places of the miners, including the room in which plaintiff was performing his duty, etc., then alleges and shows that the defendant company had wholly failed and neglected to discharge its duty or duties in this respect. The complaint charges that said defendant negligently and carelessly failed, by and through its bank (mining) boss, to visit and examine said working place and room in which plaintiff worked at least once every alternate day while plaintiff was engaged at work therein, etc., but, on the contrary, it is alleged that its said mining boss did not visit said working place, while said plaintiff was at work, more than once during a period of one week, all of which was well known to defendant; that by reason of the defendant's failure, through its mining boss, to examine the working place where the plaintiff worked, the roof of said room and place was by the defendant negligently permitted to become weak and unsafe between the props therein and the face of the coal, and the defendant negligently suffered said roof to become dangerous; that on said 20th day of August, 1903, the roof of said room in which plaintiff was performing his work, which roof the defendant had negligently suffered and permitted to become dangerous, weak, and unsafe, as aforesaid alleged and charged, suddenly gave way, caved in, and fell upon plaintiff, thereby crushing, maiming, and injuring him, etc., by reason of which injuries he has been damaged in the sum of $5,000, for which he demands judgment.
The only objection urged by appellant's counsel against the sufficiency of the complaint is that it discloses that the injury complained of did not occur at a working place in defendant's coal mine, where, under the law, it was compelled to use props to secure the roof thereof, or to see that its safety was assured, but they advance the argument that it appears by the complaint to have been a place wherein the conditions were constantly changing and where it was impossible to employ props, and that it must be considered and held to be a place which was furnished by the servant and not by the master. The pleading in controversy cannot be approved as a model, and possibly may be said to be open to a motion to make more specific. The pleader, however, appears to have followed the complaint which was held to be sufficient on demurrer in the case of Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319. In the main, so far as the draftsman of the complaint in controversy appears to have deemed them applicable, the same averments substantially are therein employed as were in the complaint in the latter case. Tested by the facts averred, and it appears that appellee bases his right of action upon section 13 of an act of the Legislature passed in 1891. Acts 1891, p. 59, c. 49; section 7473, Burns' Ann. St. 1901. This act provides a right of action against the owner, operator, agent, or lessee of a coal mine for any direct injury to persons or property occasioned or sustained by any violation of the provisions of said act, or for any willful failure to comply with its provisions. We note and consider other provisions of this same statute pertinent to this case. Section 19 (section 7479, Burns' Ann. St. 1901) makes it the duty of the owner, operator, agent, or lessee of all coal mines to which said act applies to employ a competent mining boss, who shall be an experienced coal miner. This section makes it the duty of such mining boss to “keep a careful watch over the ventilating apparatus and the airways” of the mine, and he is required to see, as the miners advance in their excavations, that all loose coal, slate, and rock overhead are carefully secured against falling on the traveling and airways. Section 12 (section 7472, Burns' Ann. St. 1901) enjoins upon the mining boss as his imperative duty to etc. A violation of the provisions of any section of the act in question is declared by section 24 (section 7483, Burns' Ann. St. 1901) to be a criminal offense. An examination of the provisions of the several statutes of this state pertaining to coal miners and their work in coal mines makes it evident that the principle purpose or object of the Legislature in the enactment of these laws was to provide more fully and effectually than does the common law for the safety and protection of this class of laborers by prescribing, as such statutes do, the particular means, methods, and measures to be used or employed, so far as practicable, by a person, either natural or artificial, engaged in the operation of coal mines, in order that reasonably safe working places for the employés in such mines may be provided. Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319. The Legislature having prescribed the particular means, measures and standards for securing the better protection or safety of such employés, it becomes the duty of their employer to comply with the provisions of the law, and the failure to so comply is by the law regarded as negligence per se, for which section 7473, Burns' Ann. St. 1901, supra, in the absence of contributory negligence on the part of the injured person, awards or provides a right of action for damages for a direct injury to person or property sustained thereby or resulting therefrom. Green v. American, etc., Co., 163 Ind. 135, 71 N. E. 268;Monteith v. Kokomo, etc., Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944; Davis Coal Co. v. Polland, supra; Diamond Block Coal Co. v. Cuthbertson, 166 Ind. 290, 76 N. E. 1060.
Appellant, as the authorities affirm, was required to employ the means or measures prescribed by the statute in order to make and keep the working place in its coal mine in a reasonably safe condition. Its duty was a continuing one, and the delegation thereof by appellant to another would not relieve it of liability from the results of the failure or negligence of the person so delegated to perform or discharge such duty. The mining boss which appellant employed, as required by the statute, was not, in the performance of his duties, under the law, the fellow servant of appellee, but was the representative of appellant. Schmalstieg v. Leavenworth Coal Co., 65 Kan. 753, 70 Pac. 888, 59 L. R. A. 707;Wellston Coal Co. v. Smith, 65 Ohio St. 70, 61 N. E. 143, 55 L. R. A. 99, 87 Am. St. Rep. 547;Linton Coal, etc., Co. v. Persons, ...
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