Boyd v. Brazil Block-Coal Co.

• Decision Date: 22 June 1900
• Parties: BOYD v. BRAZIL BLOCK-COAL CO.
• Court: Indiana Appellate Court

25 Ind.App. 157

57 N.E. 732

BOYD

v.BRAZIL BLOCK-COAL CO.

Appellate Court of Indiana.

June 22, 1900.

Motion for rehearing denied, and opinion modified.

For former opinion, see 50 N. E. 368.

Henley, J., dissenting.

COMSTOCK, J.

This cause was transferred to the supreme court for the reason that counsel claimed that a constitutional question was involved. The supreme court orderedits return to this court upon the ground that no constitutional question was properly presented. This action is prosecuted by the appellant, John Boyd, as administrator of the estate of John W. Elliott, deceased, under section 285, Burns' Rev. St. 1894, to recover damages, for the benefit of Elliott's children, on account of a personal injury sustained in a coal mine, which resulted in his death. The complaint consists of three paragraphs. The court sustained a demurrer to each paragraph of the complaint, and rendered judgment against plaintiff for costs. This ruling of the court is assigned as error. The first paragraph of the complaint is based upon sections 7466, 7473, Burns' Rev. St. 1894. Section 7466 provides “that the owner, agent, operator or lessee of any coal mine in this state shall keep a sufficient supply of timber at the mine, and the owner, operator, agent or lessee shall deliver all props, caps and timbers (of proper length) to the rooms of the workmen when needed and required, so that the workmen may, at all times, be able to properly secure the workings from caving in.” Section 7473, supra, provides “that for any injury to person or property occasioned by any violation of this act, or any willful failure to comply with any of its provisions, a right of action against the owner, operator, agent or lessee shall accrue to the party injured for the direct injury sustained thereby,” etc. This paragraph of the complaint alleges, in substance, that at the time of the injury complained of, and for a long time prior thereto, the appellee was a corporation organized under the laws of the state for mining purposes, and was engaged in mining coal in Clay county, employing in the mine where the deceased received his fatal injury more than 100 men; that the deceased was in its employ as a coal miner, as its servant, by reason of which it was the duty of the appellee to use reasonable diligence to furnish him a safe place in which to work, and to that end it became and was the duty of the appellee to keep a sufficient supply of timber at said mine, and to deliver at the room in said mine where said Elliott was engaged in mining coal all props, caps, and timber of proper length needed and required by him in properly securing his working place in said room from caving in and crushing him; that the appellee wholly neglected and failed to perform and discharge its duty in that behalf, but, on the contrary, willfully, carelessly, and negligently omitted and refused to deliver at the room and working place where the said Elliott was at the date aforesaid engaged in mining coal all props, caps, and timbers, of proper length, needed by him, so as to enable him to properly secure his working place from caving in, or to deliver to him any timber whatever, although often requested so to do; that on the 12th day of January, 1895, by reason of the fact that the roof of the room and working place where said Elliott was engaged in mining coal was not properly secured by timbers, by reason of the negligence of the appellee to furnish timbers for that purpose, the same caved in, and fell upon and crushed the said Elliott, without any fault or negligence on his part, so that he soon thereafter died; that if the appellee had not negligently and carelessly omitted and refused to furnish and deliver to the said Elliott, at his room and working place, the timber necessary for that purpose, and had performed its duty in that behalf, the said Elliott could and would have secured the roof of said room and working place, and said injury would not have occurred; that at the time of said injury the said Elliott was in the exercise of due care and caution, and but a few minutes prior to his death had carefully examined said roof, and was wholly unable to find or detect any defect therein, and had no knowledge whatever of the defect which caused the same to cave in and crush him, and was wholly ignorant of the danger in which he was placed, said defect being latent, and not discoverable by the usual and ordinary tests, but that said roof would and could have been secured against the possibility of caving in and crushing the deceased, but for the negligence of the appellee as stated herein; that without said props, caps, and timbers so required to be furnished by the appellee, the working place of the said Elliott was unsafe and dangerous, which fact was known to the appellee, or by the use of ordinary care and diligence might have been known to it, and was unknown to the said Elliott; that at the time of his death the said Elliott left surviving him, as his only heirs at law, certain minor children, whose names are set out in the complaint. The second paragraph of the complaint is based upon sections 7472, 7473, Burns' Rev. St. 1894. We have already set out so much of section 7473 as is necessary to the question here presented. Section 7472 is as follows: “That the mining boss shall visit and examine every working place in the mine at least every alternate day, while the miners of such place are, or should be at work, and shall examine and see that each and every working place is properly secured by props or timber, and that safety in all cases is assured; and when found unsafe he shall order and direct that no person shall be permitted in an unsafe place, unless it be for the purpose of making it safe. He shall see that a sufficient supply of props, caps and timber are always on hand at the miners' working places. * * *” In addition to the allegations contained in the first paragraph of the complaint, it is alleged in the second paragraph that it became and was the duty of the appellee to visit and examine, by its mining boss, every working place in its mine at least every alternate day while miners employed therein were or should be at work, and to examine and see that each and every working place therein was properly secured by props or...