Domestic Block Coal Company v. Holden

• Decision Date: 07 November 1913
• Docket Number: 8,070
• Citation: 103 N.E. 73,56 Ind.App. 634
• Parties: DOMESTIC BLOCK COAL COMPANY v. HOLDEN
• Court: Indiana Appellate Court

103 N.E. 73

56 Ind.App. 634

DOMESTIC BLOCK COAL COMPANY v. HOLDEN

No. 8,070

Court of Appeals of Indiana

November 7, 1913

Rehearing denied February 5, 1914. Transfer denied July 2 1914.

From Putnam Circuit Court; James A. McNutt, Special Judge.

Action by David Holden against the Domestic Block Coal Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Silas A. Hays and Lamb, Beasley & Douthitt, for appellant.

G. S Payne and John H. James for appellee.

OPINION

IBACH, J.

Appellee brought this action to recover damages for injuries sustained while working for appellant as a miner in one of its mines. The amended complaint is in two paragraphs. The first alleges negligence of appellant under § 12 of the mining act of 1905. Acts 1905 p. 65, § 8580 Burns 1914. The second proceeds upon the theory of a violation of certain common law duties which appellant owed to appellee as its servant. Separate demurrers to each paragraph of the amended complaint were overruled, and this action of the court is assigned as error. Answers in general denial were filed to each paragraph of the amended complaint, together with three paragraphs of affirmative answer of former adjudication. To each of these affirmative answers appellee filed replies, and the court's action in overruling demurrers to these replies is also assigned as error. There was a trial by jury, verdict for appellee for $ 2,000, and judgment thereon. Appellant's motion for new trial containing many specifications was overruled, which ruling is also assigned as error.

A complaint similar in all of its material allegations to the first paragraph of this one was considered by the Supreme Court in the case of Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99, and upon the authority of that case and the cases there cited, the first paragraph of this complaint must be held sufficient. One effect of that decision is to hold that a complaint of this character will be sufficient if it advises the defendant of the negligence charged so as to be informed of what it is expected to meet at the trial, and the injured party is not required to plead in detail such facts as are peculiarly within the knowledge of the defendant. These propositions are well supported by the following cases: Louisville, etc., R. Co. v. Bogue (1912), 58 So. 392, 394; Fort Wayne Iron, etc., Co. v. Parsell (1912), 49 Ind.App. 565, 567, 94 N.E. 770, and cases there cited.

A number of objections are made to the second paragraph of the complaint but those chiefly urged and which, it may be said, embody all the others are that this paragraph "wholly omits to charge facts to show that the appellant owed appellee any legal duty", "that from its averments it appears that he was employed to make a dangerous place safe, and was so engaged at the time of his injury, and that he assumed the risk of such employment, and under the facts could not recover." In this paragraph it is alleged that appellee was employed in appellant's mine as a tracklayer; that appellant employed a bank boss to act for it in furnishing appellee a reasonably safe place to work; that appellant negligently permitted slate and rock to become loose and likely to fall at any time in the roof of the neck of room No. 7; that on September 24, the bank boss, who had authority to direct and control where appellee should work, ordered him to leave his work as tracklayer, and to put a neck bar across the neck of said room, that in pursuance to said order appellee proceeded to said room and undertook to put up said neck bar, and while so engaged a large quantity of slate and rock fell upon him, injuring him; that the appellant knew from one to ten days before September 24, of the unsafe condition of said roof in said room neck, but notwithstanding said knowledge, ordered him to go into the neck of said room as aforesaid, and failed at any time to give him any notice or warning of the dangerous condition of said roof and he did not know of such condition and there was nothing in the appearance of the slate and stone which fell upon appellee to indicate any immediate danger of its falling condition.

It is settled law, when the master has knowledge, or might obtain knowledge by an inspection, of a defective condition of the place where one of his employes is required to work, which renders the place unsafe and dangerous, and where the defect is such that it can not be readily detected by such employe, the master is bound to inform him of the situation, and a failure so to do will make him liable to respond in damages to the employe who is injured by reason of the defective condition of his working place. Parke County Coal Co. v. Barth (1892), 5 Ind.App. 159, 31 N.E. 585; Summit Coal Co. v. Shaw (1896), 16 Ind.App. 9, 44 N.E. 676; Miami Coal Co. v. Gardner (1912), 49 Ind.App. 629, 97 N.E. 942. There is another well settled rule of law applicable to this case, that is, where an employe is ordered by the master to leave his accustomed work and engage in other services for the master which subject him to increased or additional danger, unknown to him, he has a right to assume that the master has used ordinary and reasonable care to make the particular place where he is required to perform the new and temporary service reasonably safe, and that he will at least use ordinary care to keep the place safe while he is doing the work, and it does not necessarily follow that because he does engage in such new and temporary service at the direction of the master that he thereby assumes the increased hazard or risk. See authorities just above cited. Again we are mindful of the rule that a demurrer admits to be true not alone the facts which are well pleaded, but also all necessary inferences to be drawn therefrom. Domestic Block Coal Co. v. DeArmey, supra, and cases cited. Measured by these well known rules of law the averments to be found in the second paragraph of the complaint are sufficient and it must be upheld.

The trial court also correctly overruled demurrers to appellee's replies to appellant's answers of former adjudication, for it clearly appears from the records of the court as pleaded in these replies that at the same term of the court at which the judgment relied upon by appellant was erroneously rendered in favor of the defendant Howard, the mine boss, after he had been defaulted, such default and judgment was regularly set aside. There can be no question but that a trial court upon motion of a party or on its own motion may set aside a default and judgment and correct any error connected therewith, which it has committed, at any time during the term of the court at which such default and judgment was taken, and this may be done without notice to either party. The contention therefore, that the court was wrong in correcting an error committed by it as soon as the error was discovered is without merit. Blake v. Stewart (1868), 29 Ind. 318, 321; Heaston v. Cincinnati, etc., R. Co. (1861), 16 Ind. 275, 79 Am. Dec. 430.

The third to thirty-second reasons for new trial relate to the action of the court in giving to the jury certain instructions and in refusing to give others requested by appellant. It is first insisted that there was error in giving instruction No. 1, in that the jury was told by it that the action was brought by appellee to recover damages "for an injury which he received", that this was an assumption that the appellee was injured, which was error in view of the issues and the proof, also that the instruction was in other respects so drawn as to mislead the jury as to the issues, that the jury was led to infer from it that if the state of...