Carson v. Miami Coal Company

• Decision Date: 21 December 1923
• Docket Number: 24,003
• Citation: 141 N.E. 810,194 Ind. 49
• Parties: Carson v. Miami Coal Company
• Court: Indiana Supreme Court

141 N.E. 810

194 Ind. 49

Carson v. Miami Coal Company

No. 24,003

Supreme Court of Indiana

December 21, 1923

From Parke Circuit Court; Henry Daniels, Judge.

Action by Harry Carson against the Miami Coal Company. From a judgment for defendant, the plaintiff appeals.

Affirmed.

Joseph W. Amis, Howard L. Hancock and C. P. McClelland, for appellant.

Maxwell & McFaddin, for appellee.

OPINION

Ewbank, C. J.

This was an action by appellant seeking damages for injuries which he alleged he had sustained by the fall of coal, slate and stone in appellee's coal mine, in which he was employed to do labor, such as removing coal, slate, stone and other debris that was loose or had fallen in the working places in the mine. After certain averments had been struck out of the complaint, to which rulings appellant excepted, defendant filed an answer of denial and a plea that plaintiff's demand had been settled by a compromise, to which appellant replied by a denial. The issues thus joined were then submitted to a jury for trial. But, at the close of appellant's evidence, appellee moved the court for an instruction that the jury should find for the defendant after which the record recites as follows: "Motion is sustained by the court, and the jury is so instructed and they return their verdict finding for the defendant, signed by Charles Jessup (which verdict is set out). Plaintiff moves the court to poll the jury. Motion overruled and the plaintiff at the time excepts." The instruction given is not otherwise set out in the record. The trial commenced on April 25, 1921, and ended with the giving of said instruction the next day. In the course of the trial certain parts of two depositions offered in evidence were struck out, to which appellant excepted. Directing a verdict, overruling the motion to poll the jury and sustaining the several motions to strike out parts of each of said depositions were assigned as reasons for a new trial, by a motion which was overruled, and appellant excepted. Appellant's assignment of errors and brief present for review the rulings on the motion to strike out parts of the complaint and on the motion for a new trial.

The material averments of the complaint, in substance, were that the defendant (appellee) was a corporation operating a coal mine in which it employed more than ten men; that it was not working under the provisions of the Indiana Workmen's Compensation Act; that plaintiff (appellant) was employed by defendant in said mine as a laborer to do the work of removing coal, slate, stone and other debris that was loose in the working places in the mine, and to do other work as directed; that defendant employed a mining boss, whose duties were as prescribed by statute; that, under the direction and supervision of said mining boss, plaintiff engaged in taking down and removing certain loose rock, slate, and coal in an entry; that the same had been loose and liable to fall for three days; that said condition was known to the mining boss, or would have been known to him if he had exercised reasonable care, in time to have made the place safe by providing proper support; that defendant negligently failed to provide props and timbers to hold and support the walls and roof until the loose material could be removed and the roof was not properly supported by timbers; that with knowledge of said unsafe condition, the defendant, by its mine boss, ordered and directed plaintiff to pull down the loose rock near the curtain; that a large piece of rock was supported only by a two by four timber, which was inadequate to hold it; that plaintiff had complained to said mine boss in the morning before of having insufficient help, and informed him of the dangerous condition of said mine entry, but the mine boss told him to go ahead and do the best he could to get them cleared up; that, under his employment, plaintiff was bound to conform to and obey the orders of the mine boss, and in response to said order and direction, he went into the mine to perform the duties required of him; that the loose rock gave way and fell without any warning, and that by reason of said carelessness and negligence of defendant and its mine boss, part of the roof of said entry fell upon plaintiff and inflicted certain described personal injuries, to his damage in an amount as stated; that said carelessness and negligence of defendant and its said mining boss were the sole proximate cause of plaintiff's injuries. And "plaintiff further says that it then and there became and was the duty of the defendant to use and exercise the greatest care to provide and maintain for this plaintiff, as its employe, a safe place in which to work and perform his labor."

On motion of appellee, the sentence last above written which we have put in quotation marks, was struck out as stated above. This was not error. Whether or not it was the duty of defendant, under the facts alleged to exercise any degree of care, and what care he was required to exercise were matters of law, to be declared by the court in giving instructions and not matters of fact to be pleaded. Moreover the language struck out failed to state the rule of law correctly. Where a master owes to his employe a general duty to exercise care for the safety of such employe in making his place to work safe in particulars as to...