Davis Coal Co. v. Polland

• Decision Date: 15 January 1902
• Docket Number: 19,644
• Citation: Davis Coal Co. v. Polland, 158 Ind. 607, 62 N.E. 492 (Ind. 1902)
• Parties: Davis Coal Company v. Polland
• Court: Indiana Supreme Court

62 N.E. 492

158 Ind. 607

Davis Coal Company v. Polland

No. 19,644

Supreme Court of Indiana

January 15, 1902

Rehearing Denied May 23, 1902.

From Clay Circuit Court; S. M. McGregor, Judge.

Action by Samuel Polland against the D. H. Davis Coal Company.From a judgment for plaintiff, defendant appeals.

Affirmed.

G. A Knight, for appellant.

S. D Coffey and A. W. Knight, for appellee.

OPINION

Baker, J.

This cause has been transferred here because the Appellate Court was equally divided on the questions involved.Davis Coal Co. v. Polland,27 Ind.App. 697, 60 N.E. 1124.

Appellee had judgment against appellant for damages for personal injuries.The assignments are that the court erred in overruling appellant's demurrer to the complaint, motion for judgment on the jury's answers to interrogatories notwithstanding the general verdict, and motion for a new trial.

I.The complaint is as follows: "Samuel Polland, plaintiff, complains of D. H. Davis Coal Company, defendant, and says that on the 30th day of November, 1897, the said defendant was and for many years prior thereto had been a duly organized corporation, organized under the laws of the State of Indiana for mining purposes; that the said defendant then was and for a long time prior thereto had been engaged in the business of mining coal in Clay county, Indiana, by means of a shaft sunk from the surface of the earth to the bed of said coal, and by means of driving entries through the same, from which said entries rooms were turned; that on said day said defendant had in its employ, engaged in mining coal in said mine, more than ten men, to wit, 100 men; that on said day the plaintiff then was in the employ of the said defendant as a coal miner, engaged in mining coal in said mine, in a room on an entry running in a westerly direction from the bottom of said shaft; that by reason of the fact that the plaintiff was so engaged in the employ of the defendant as its servant in said mine it became and was the duty of the defendant to use reasonable care to furnish him a safe place in which to perform his said work, and to protect him therein, and to that end it became and was the duty of the defendant to keep constantly on hand at its said mine, a sufficient supply of timbers, and to deliver at said working place of the plaintiff all props, caps, and timbers of proper length, when needed and required by the plaintiff, so that he might be at all times able to secure properly his said room from caving in; that it was the further duty of the said defendant, by its bank boss, to visit and examine each and every working place in said mine, including the room in which this plaintiff was at work at least every alternate day, and to examine and see that each and every working place in said mine, including the room in which this plaintiff so worked, was properly secured by props or timbers, and that safety was in all respects assured, and to see that a sufficient supply of props, caps and timbers was always on hand at this plaintiff's said room or working place in order that the same might be propped and made secure and safe; and the plaintiff alleges that the said defendant did not perform its said duty in that behalf, but wholly failed and neglected so to do in this: That it did not keep constantly on hand a sufficient supply of timbers of proper length when needed and required by the plaintiff so that he might be at all times able to secure properly his said room and working place from caving in, but, on the contrary, it negligently and carelessly refused and neglected to deliver the necessary props, caps, and timbers of proper length to the said plaintiff at his said working place, although often requested by the plaintiff so to do; that said defendant negligently and carelessly failed, by its bank boss, to visit and examine the said working place and room of the plaintiff at least every alternate day while the plaintiff was at work therein, and see that the same was properly secured by props or timbers, and that safety was in all respects assured, and see that a sufficient supply of props, caps, and timbers was always on hand at the said working place and room of this said plaintiff, but, on the contrary, did not visit said working place more than once a week and negligently and carelessly permitted the same to remain without props, caps, and timbers for two days prior to the injury hereinafter complained of, so that by reason of the negligence of the said defendant as herein stated the plaintiff was unable to prop and make secure the said room and working place in which he was performing his said work; that by reason of the said negligence of the defendant, and by reason of the want of timbers, caps, and props of proper length to secure the same, the roof of the said room in which the plaintiff was at work became and was weak and dangerous, which was well known by the defendant, or might have been known by it had it used reasonable diligence to ascertain the same; that by reason of the weak and unsafe condition of said room, caused as aforesaid from inability of the plaintiff to prop and secure the same for want of props, caps and timbers of proper length as aforesaid, the said roof of said room in which plaintiff was performing his work in said mine on the 30th day of November, 1897, suddenly gave way, caved in, and fell upon the plaintiff, thereby crushing and maiming the flesh and bones in his right leg below the knee, without any fault or negligence on his part; that by reason of said injury the plaintiff became sick, sore, and lame, and was confined to his bed for a long space of time, to wit, two months, and suffered and endured great bodily pain and mental anxiety and suffering, and has been permanently injured, and lost a large amount of time, to wit, four months, of the value of $ 300, and will never be able to earn money by his labor as he was prior to said injury; that said injury occurred wholly by the fault and negligence of the said defendant, while the plaintiff was in the exercise of due care and caution; that if the said defendant had performed its duty, and visited said working place of the plaintiff by its bank boss, and had seen that safety was in all respects assured, and seen that timbers, props, and caps of proper length were always on hand, said injury would not have occurred; that had the said defendant furnished this plaintiff with timbers, caps, and props, as was its duty, he could and would have propped and secured the roof of said room and working place so that the same would not have caved in, fallen upon, and crushed his said leg; that at and prior to the time of said injury there was nothing in the appearance of said roof to indicate immediate danger, and he was unable to find any defect therein by the usual and ordinary tests, but he says the same could and would have been made by him perfectly secure but for the negligence of the defendant as herein alleged; that by reason of the injuries herein alleged the plaintiff has been damaged in the sum of $ 3,000.Wherefore he demands judgment for $ 3,000, and all other proper relief."

The parts of the statutes on mines that are pertinent provide: "Miners' bosses shall visit their miners in their working places at least once every day where any number not less than ten nor more than fifty miners are employed, and as often as once every two days when more than fifty miners are employed."§ 7447Burns 1901, § 5472a Horner 1901."The owner, operator, agent 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 secure properly the workings from caving in."§ 7466Burns 1901, § 5480g Horner 1901."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 and timber and that safety of the mine is assured.He shall see that a sufficient supply of props and timber are always on hand at the miners' working places."§ 7472Burns 1901, § 5480m Horner 1901."For any injury to person or property occasioned by any violation of this act, or any wilful 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".§ 7473Burns 1901, § 5480n Horner 1901.

Two questions arise on the complaint: Assumption of risk and contributory negligence.

(1) The complaint does not negative the employe's knowledge of the employer's negligent failure to perform the duties imposed by statute, and of the dangers resulting therefrom.

If the cause of action in this case were based upon the employer's neglect to perform a common law duty, or if there were no valid distinction between neglect of a common law duty and neglect of a specific statutory duty, the complaint would be fatally defective.Ames v. Lake Shore, etc., R. Co.,135 Ind. 363, 35 N.E. 117;Louisville, etc., R. Co. v. Kemper,147 Ind. 561, 47 N.E. 214;Whitcomb v. Standard Oil Co.,153 Ind. 513, 55 N.E. 440.

By the common law an employer is required to exercise that degree of care in providing his employe a safe working place and tools and appliances which a reasonably prudent person would exercise under like circumstances.The rule is general.There is no fixed quantum of care that must be exercised invariably in all cases.In each case the quantum of care required by the common law rule is dependent largely...