Diamond Block Coal Company v. Cuthbertson
| Decision Date | 15 March 1906 |
| Docket Number | 20,567 |
| Citation | 76 N.E. 1060,166 Ind. 290 |
| Parties | Diamond Block Coal Company v. Cuthbertson |
| Court | Indiana Supreme Court |
From Clay Circuit Court; P. O. Colliver, Judge.
Action by Hugh Cuthbertson against the Diamond Block Coal Company. From a judgment of the Appellate Court affirming a judgment for plaintiff for $ 7,500, defendant appeals, under subd. 3 § 1337j Burns 1901, Acts 1901, p. 565, § 10.
Affirmed.
E. E Stevenson, F. Winter, Clarence Winter, E. S. Holliday and F A. Horner, for appellant.
Coffey & McGregor and G. S. Payne, for appellee.
This was an action instituted by appellee against appellant to recover damages for personal injuries sustained while in the employ of the latter as a coal miner. The cause was tried upon an amended complaint consisting of three paragraphs, the first and second of which are based on § 7473 Burns 1901, Acts 1891, p. 57, § 13, of the act relating to coal mines. This section declares a liability against the owner, operator, agent or lessee of a coal mine for any injury to person or property occasioned by any violation of this act, or for any wilful failure to comply with its provisions.
The complaint may be summarized as follows: The first paragraph alleges that the defendant coal company is a corporation duly organized, etc., and is engaged in mining coal in Clay county, Indiana, by means of shafts, etc., a description of the method of operation being stated. Said defendant at and prior to the time of the injury in question had in its employ over one hundred men, including the plaintiff herein. It was the duty of the defendant to use reasonable care and diligence in furnishing the plaintiff with a safe place in which to perform his work. It was also its duty under the statute to employ a competent mine boss. It was the latter's duty to visit and examine every working place in defendant's mine on every alternate day, and to examine and see that every such place was properly secured by props and timber, and that the safety of the mine was thereby secured. It was the further duty of the mine boss to see that a sufficient supply of props and timber was always on hand. It is alleged that the defendant failed and neglected to perform its said duty, and that its mine boss failed to visit the working places of said mine on each alternate day while plaintiff was employed at said mine; that said boss failed to see that said working places were properly secured by props and timber so as to render said working places safe, and that he did not see that a sufficient supply of props and timber was always on hand as required; that three days prior to the time when the plaintiff sustained the injury complained of said mine boss visited the working place wherein plaintiff was at work when he sustained the injury complained of, and he found the roof overhanging said place loose, cracked and in an unsafe condition; that he found that said roof was not properly secured by props and timbers, and was liable to "fall and cave in," but, notwithstanding the fact that the defendant had full knowledge of the unsafe and dangerous condition of said working place, it negligently and carelessly permitted and directed that the plaintiff should perform his work therein; that pursuant to said direction of the defendant, given through its mine boss, plaintiff did on February 13, 1900, enter said working place, and while he was engaged at work therein in the service of the defendant and in the line of his duty the roof thereof, without notice or warning, by reason of said defects, gave way, caved in and fell upon appellee to his injury and damage, etc. It is also alleged that at and prior to his sustaining said injury he was ignorant of the unsafe condition of the working place in question, and had no knowledge of its said condition and no notice or knowledge of the dangers and perils thereof. There was nothing in the appearance of the slate or stone which fell from the roof upon him to indicate any immediate danger of its falling; that the same could have been secured by props and timbers, and said working place could have been made safe and secure by the defendant if proper timbers had been supplied for that purpose. It is averred that the plaintiff was in the exercise of due care, and that the injury which he sustained was caused by the fault and negligence of the defendant.
The second paragraph contains all of the material allegations of the first, and in addition avers that it was the duty of the defendant to furnish a "bank boss" to see that all working places were made safe; that while it did have such bank boss in its employ he failed and neglected to do his duty, etc. The third paragraph declares upon the common-law liability of the master, and proceeds upon the theory that when the latter has knowledge of a defect in the working place of his employe which renders it unsafe, and where such defect is of a character that it may escape the notice or observation of the employe, it is the duty of the master to notify the latter, and, failing to do so, he is liable for any injury which the employe may sustain by reason of such defect. After setting forth the defective condition of the roof of the room of the mine where the plaintiff was injured as alleged in the first and second paragraphs, it alleges that the defendant had full knowledge of such defects, and that the loose and unsafe condition of the roof could have been easily ascertained by inspection, but was of such a character as to show no outward defects or indications of its unsafe condition, and was of such a character as the plaintiff was liable to overlook; that by reason thereof it became and was the duty of the defendant to notify the plaintiff thereof; that neither the defendant nor any one else notified the plaintiff of the defects in said roof, nor did he, at the time he sustained said injury, or prior thereto, have any knowledge or notice of the defects in said roof, or of its unsafe condition; that of these defects and unsafe condition the defendant had full knowledge, and, well knowing that the plaintiff was wholly ignorant thereof, defendant did on February 13, 1900, direct the plaintiff to enter said room and working place to perform his work, all of which the plaintiff did in total ignorance of its unsafe condition, etc. Then follow the same allegations as to due care and absence of contributory negligence on the part of the plaintiff as alleged and contained in the first and second paragraphs.
The appellant moved that the lower court compel the appellee to make his complaint more specific, in this: "That he be required to state in each paragraph the particular kind of work upon which he was engaged and the manner in which he was performing said work at the time the alleged injury occurred." This motion the court denied. Thereupon appellant unsuccessfully demurred to each paragraph of the complaint. The answer was a general denial. The case was tried by a jury and a general verdict returned in favor of appellee, assessing his damages at $ 7,500. Over appellant's motion for a new trial judgment was rendered on the verdict.
The assignments of error herein are predicated upon the rulings of the court in denying the motion to make the complaint more specific, in overruling the demurrer to each paragraph of the complaint, and in denying the motion for a new trial.
The motion to make the complaint more specific was properly denied. It will be observed that appellant thereby moved that the court require appellee to state in his pleading the kind of work in which he was engaged at the time of the accident, and the manner in which he was performing the same at the time he was injured. As to these matters appellant was sufficiently advised by the complaint. The allegations thereof can not be said to be so indefinite or uncertain as to fail to inform appellant of the charge in question. The averments are sufficiently definite and certain as to apprise appellant of what it was required to meet and thereby be enabled to prepare for its defense. Illinois Cent. R. Co. v. Cheek (1899), 152 Ind. 663, 53 N.E. 641.
It is next contended that neither paragraph of the complaint is sufficient to withstand the demurrer. The reasons in the main asserted in support of this contention are: (1) It is not shown that appellee made an inspection or careful observation of the premises wherein he was engaged at work at the time he sustained the injury; (2) each paragraph of the complaint discloses that appellee assumed the risk of the unsafe condition of the place in which he was engaged at work at the time of the accident. There are no facts exhibited by either paragraph of the complaint to justify this contention. Each of them discloses that appellant knew of the defects or unsafe condition or perils of the premises in question but an absence of such knowledge on the part of appellee is positively averred. It was not essential that the pleading, in addition to negativing knowledge on appellee's part, should go further and allege that he had no means or opportunity of discovering or ascertaining the defects or dangers of the place in controversy. The averment that he had no knowledge of the unsafe or dangerous condition of the place in question is sufficient, as a matter of pleading, to show not only an absence of actual knowledge, but also that of implied or constructive notice or knowledge on appellee's part. Baltimore, etc., R. Co. v. Roberts (1903), 161 Ind. 1, 67 N.E. 530, and authorities cited.
That by the common law a servant under his contract of employment impliedly assumes all of the risks incident to the service in which he engages is a well-settled principle under the law pertaining to master and servant. But such...
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