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." § 7447 Burns 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." § 7466 Burns 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." § 7472 Burns 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". § 7473 Burns 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...
