Brazil & Chicago Coal Co. v. Cain

• Decision Date: 20 June 1884
• Docket Number: 9914
• Parties: The Brazil and Chicago Coal Company v. Cain
• Court: Indiana Supreme Court

98 Ind. 282

The Brazil and Chicago Coal Company v. Cain

No. 9914

Supreme Court of Indiana

June 20, 1884

Petition for a Rehearing Overruled November 15, 1884.

From the Clay Circuit Court.

The judgment is reversed with costs, and the cause remanded with instructions to sustain the demurrer to the complaint, and for further proceedings in accordance with this opinion.

W. W Carter, J. A. McNutt and S.W. Curtis, for appellant.

G. A Knight and C. H. Knight, for appellee.

OPINION

Howk, J.

This was a suit by the appellee, Bridget Cain, to recover damages for the death of her infant son occasioned, as alleged, by the appellant's negligence. The cause was put at issue and tried by a jury, and a verdict was returned for the appellee, assessing her damages in the sum of $ 1,000; and, over the appellant's motion for a new trial, judgment was rendered on the verdict.

In this court, the appellant has assigned, as errors, the following decisions of the trial court:

1. In overruling its demurrer to appellee's complaint;

2. In sustaining appellee's demurrer to the second paragraph of its answer; and

3. In overruling its motion for a new trial.

In her complaint, the appellee alleged that the appellant, a corporation organized and existing under the laws of this State, on and before the 22d day of December, 1879, was the owner and in possession of, and operating a certain coal mine in Clay county, and, at the happening of the alleged wrongs and grievances thereinafter stated, was, by its agents and employees, engaged in mining and removing large quantities of coal from its mines; that appellee's infant son, Patrick Cain, aged nineteen years, on and before the day last named, was and had been employed with appellee's consent, and hired by the appellant, to dig and mine coal in one of the rooms of its mines; that, on the day aforesaid, while engaged in his usual labor as appellant's employee, the said Patrick Cain was ordered and directed by one William Hopkins, who was then in appellant's employ as its bank or mine boss, to leave his work and business of mining coal in his room, without appellee's consent, and take charge of and drive a mule attached to the bank-cars in such mine, and haul the coal from the different rooms in such mine through and along the entrances and roadways therein, to the bottom of the shaft or pit, which work was more hazardous than mining coal; that, while so engaged in the performance of the duty and labor so assigned to him by appellant's bank-boss, and without any fault or negligence on the part of himself or of the appellee, and while driving said mule and bank-car along one of the entrances and roadways in such mine, a large quantity of slate roofing in such entrance, and overhanging said roadway, fell down with great force upon him, said Patrick Cain, and crushed his body and limbs beneath its weight, and so injuring him that he died within three days thereafter.

And the appellee averred that, at the time of said casualty, the said William Hopkins was the appellant's employee and bank-boss, and, as such, had charge of its coal mine and control of the men working therein, and it was his duty to look after, care for and superintend said mine and the entire workings therein, and to secure and keep the rooms, entrances and openings of such mine in a safe condition; that, in utter disregard of his duties as such bank-boss and mine superintendent, the said Hopkins had notice of the unsafe and dangerous condition of the roof in said entrances over such roadway, where the appellee's son was fatally injured and was directed to drive said mule, and he, Hopkins, was requested several days before said injury happened to secure such roof at said point, either by propping it up or by taking it down; yet the appellee said that, notwithstanding such knowledge on the part of appellant's agent and mine superintendent, the appellant recklessly and negligently permitted the roof in said entrance to be and remain in such unsafe and dangerous condition; that on the day aforesaid, while the appellee's son was passing along and through such entrance, in the performance of the work assigned him, and in utter ignorance of the unsafe and dangerous condition of said roof, the slate forming the same fell down upon and fatally injured him, from the effect of which he, in a few days thereafter, died to the appellee's damage in the sum of $ 5,000, for the loss of her son's services during his minority, for his funeral expenses, medical services, and for care and attention bestowed upon him; that the said Patrick Cain left surviving him the appellee, his mother, and his sisters Mary and Ellen and his brother John, all younger than he, who were his next of kin, and for whose use and benefit this action was instituted by appellee; and that, on May 17th, 1875, the appellee's husband and the father of her deceased son, Owen Cain abandoned his family, left for parts unknown, and, since that date, had not been heard of. Wherefore the appellee demanded judgment for $ 5,000, etc.

We are of opinion that the court erred in overruling the appellant's demurrer to appellee's complaint. It will be observed that it is nowhere alleged in the complaint that the death of appellee's...