Blondin v. Oolite Quarry Co.

• Decision Date: 14 December 1894
• Citation: 39 N.E. 200,11 Ind.App. 395
• Parties: BLONDIN v. OOLITE QUARRY CO.
• Court: Indiana Appellate Court

11 Ind.App. 395

39 N.E. 200

BLONDIN

v.OOLITE QUARRY CO.

Appellate Court of Indiana.

Dec. 14, 1894.

On petition for rehearing. Denied.

For former opinion, see 37 N. E. 812.

REINHARD, J.

The distinguished counsel who wrote the appellee's brief on the petition for a rehearing in this case makes a vigorous assault upon our former opinion, and insists that we have not only grossly misconceived the counsel's position throughout, but have based our conclusions upon rules of law which were never disputed by counsel, but which have not the least application to the case in hand; and that we have promulgated a decision which “marks a most radical departure from rules that for centuries have been regarded as settled,” and “upon which the industrial affairs of great civilized communities have been founded, and upon which people engaging in them had, until recently, full reason to rely.” Counsel also admonishes us that “if this opinion is to prevail, it is certain that new calculations will have to be made by every employer of labor, and business be transacted upon a different basis, and with a larger margin of profits to cover such expenses as the doctrine of this opinion must necessarily entail.” This is vigorous language, and, if true, not only entitles the appellee to a rehearing, but also to an apology from the court. One of the highest functions, as well as most sacred duties, of a judicial tribunal is to declare the law as it is, and when certain legal principles have been settled for such a length of time as that mentioned in appellant's brief, without being seriously called in question, it would be little short of malfeasance, if judges, either as the result of mere caprice, or, indeed, of ignorance, should deliberately set them aside, and substitute therefor their own notions of what is right or wrong in a given case. Courts are, of course, liable to err, with the best of intentions, and the most abundant facilities for information, but a court should never hesitate to correct an error when its attention has been directed to it, and it is convinced that an error has been committed. With this conception of our duty, and in view of the vigorous arraignment of our former opinion by the eminent counsel for the appellee, we have given the case a second careful consideration, and will now proceed to notice the arguments advanced by counsel in support of the petition.

The causes assigned in the appellee's petition for a rehearing are predicated on the following alleged errors: (1) In holding that upon the facts found in the special verdict the appellee was guilty of negligence proximately causing the appellant's injury. (2) In deciding that appellant was free from contributory negligence. (3) In holding that a case was presented for the application of the rule requiring an employer to use reasonable care with respect to providing safe places for his employés to work. (4) In holding that a case was presented showing that anybody was guilty of negligence, and requiring an inquiry as to whether appellant or appellee was negligent. (5) In holding that there is any case presented except one of ordinary accident, which reasonable care and prudence did not require either party to foresee, or take any measures that were not taken to avoid. (6) In holding that a case was presented in which appellant encountered risks not known and assumed by him in the ordinary performance of the work in which he was engaged. (7) In holding that upon the facts found the decision and judgment of the lower court should be reversed, and judgment rendered in favor of appellant.

The trend of the argument of the appellee's brief is to the effect, if we correctly understood it, that the injury complained of was an ordinary accident, and not the result of negligence, either on the part of the appellee or of the appellant; and that the rules of law upon which the opinion proceeds are therefore not applicable. It is an elementary rule that there can be no actionable negligence except where there is a failure to perform some legal duty, for negligence is actionable only when it involves a breach of duty towards the person injured. Hence it must be conceded that the appellant cannot recover unless the facts found in the special verdict show that the appellee owed the appellant a duty in law which it failed to perform, and by reason of which failure the appellant received the injury of which he complains. The relations which the appellee and appellant sustained to each other were those of master and servant or employer and employé. The rule that the master owes the servant the duty of providing him with a reasonably safe place and safe appliances to work with is not denied by appellee's counsel, but it is insisted that it has no application to the case made by the special verdict. Whether the case comes within the rule referred to depends, therefore, upon the facts found in the special verdict. Every employment of the servant by his master is governed, of course, by the contract of employment, which contract may be expressed or implied. It is, strictly speaking, the contract of employment, therefore, which determines the duty which the servant owes to the master, and the master to the servant; and what that contract was must be determined by the facts and circumstances of the particular case. In the present case we are not permitted to look to the evidence in order to ascertain the exact nature of the employment, but are confined to the facts found in the special verdict, and by these alone, and the law applicable to them, we must be controlled. It will certainly not be denied that if, under the terms of the appellant's employment, the appellee agreed to so place the stones surrounding the particular one upon which the appellant might be at work as to be safe and secure from falling over, the appellant had a right to assume that this had been done, to a reasonable extent, at least. The averment of the complaint is “that it was the duty of the defendant to place stone in an upright position on an even surface, and securely prop the same for dressing purposes, prior to the work done thereon”; but that the defendant in this instance so placed the stone to be dressed by the plaintiff “as to leave it and the place about it in a dangerous and unsafe condition, and carelessly and negligently failed to set said stone on an even surface, and failed to prop, stay, or otherwise prevent such stone from falling over and upon the employés or persons passing about or near it, but further carelessly and negligently set said stone on said stone yard on its edge, and allowed the same to rest on loose and uneven spawls or pieces of rough and broken stone,”-of all of which the defendant had full knowledge, but of which the plaintiff was ignorant. The averment as to the appellee's duty to securely place the stone prior to the work done on the same is somewhat vague, it is true, but, in the absence of a motion to make more specific, we think it amounts to an allegation that the “duty” referred to was one which was provided for by the terms of the contract of employment, or, in other words, that the appellee had agreed to so place the stone to be dressed by the appellant as to make it secure against falling over and upon the employés or persons passing about or near it. The question then recurs whether this averment is supported by the facts proved as specially found by the jury.

It must be conceded that the special verdict is not as clear and direct as it could be upon this as well as upon other matters found, but, on the contrary, it contains many inconsistent and even contradictory statements, which is owing to the fact, doubtless, that the jury attempted to make the finding as satisfactory to both parties as might be by adopting both the form of verdict submitted by the appellant and that prepared by the appellee, the foreman signing each separately. Nevertheless it is our duty to reconcile the two findings, whenever and wherever this can be done, by giving effect to the manifest intention of the jury as expressed by their findings.

The second finding in the first series is as follows: “We further find that on the said 15th day of June, 1892, the plaintiff in this cause was employed by the defendant as a stone cutter, and for the specific purpose of dressing stone for the defendant on its yard at its quarry, and for which special service he was receiving $3.50 per day; and that under his special employment he was disconnected in said service from the other employés, except stone cutters in like service as his own; and that his duties under such employment were to dress blocks of stone ready for shipment, after the same has been placed on the defendant's stone yard on a solid and steady surface, secure and safe to work upon and about.” Here we have the specific nature of the employment in and for which the appellant was engaged clearly enough set forth, and it shows that at the time of the injury he was employed as a stone dresser, and nothing else. Under this finding it cannot be maintained with any degree of plausibility that the duty of propping the stone so as to secure it against falling devolved upon the appellant, or that he was to assist in this work, or have any part in it whatever. It is also found that after the stones had been placed on a solid foundation, secure and safe to work upon and about, it became the appellant's duty, under his employment, to dress the stone. By whom was the work of placing the stones securely to be done? It seems to us that, in the absence of any further finding, that duty must be determined to devolve upon the appellant. But it is contended that other findings more fully explain who was to perform this portion of the work, and that, when all the findings are construed together, they will not be susceptible of the interpretation we have placed upon them in this regard. The contention is that, when all the findings...