Fauvre Coal Company v. Kushner
| Decision Date | 27 May 1919 |
| Docket Number | 23,299 |
| Citation | 123 N.E. 409,188 Ind. 314 |
| Parties | Fauvre Coal Company v. Kushner |
| Court | Indiana Supreme Court |
From Vigo Circuit Court; Samuel D. Royse, Special Judge.
Action by John Kushner, by his next friend, against the Fauvre Coal Company. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under Acts 1901 p. 590, § 1405 Burns 1914.)
Affirmed.
Royse Dix & Cooper, for appellant.
Charles S. Batt and Walter S. Danner, for appellee.
This was an action by appellee against appellant to recover damages for personal injuries alleged to have been received by appellee while he was working in appellant's coal mine. The complaint counts on a liability under the Employers' Liability Act of March 2, 1911, and is in one paragraph.
The appellant filed a motion to require the plaintiff to make his complaint more specific and more definite and certain, and also filed a demurrer alleging that said complaint did not state facts sufficient to constitute a cause of action against defendant. Both of these were overruled, and the appellant then filed an answer in general denial to the complaint and the cause was submitted to a jury, resulting in a verdict for appellee in the sum of $ 3,000, on which judgment was rendered; and from such judgment appellant appeals. The errors relied on for reversal are: (1) The court erred in overruling the motion of appellant to require the appellee to make the amended second paragraph of complaint (his complaint herein) more specific and more definite and certain. (2) The court erred in overruling appellant's demurrer to the amended second paragraph of complaint. (3) The court erred in overruling appellant's motion for a new trial.
The complaint alleges: That the plaintiff is an infant under the age of twenty-one years; that the defendant is now and was on and for a long time prior to December 2, 1912, a corporation duly organized and existing under and by virtue of the laws of the State of Indiana, and is engaged in business, trade and commerce in Vigo county, State of Indiana, and did on and before December 2, 1912, and does now, employ more than five men; that the defendant is engaged in mining and selling coal, and has a mine located in Vigo county, Indiana, known as Ice Plant Mine No. 2; that plaintiff, on December 2, 1912 was a driver for the defendant in its said mine, and as such driver he was employed by defendant to drive in, along and through various entries of its said mine, among which was an entry in defendant's mine known as the "main east entry"; that the defendant now has, and for a long time prior to December 2, 1912, had, a shaft sunk from the surface of the earth to the bed of the coal beneath--a distance of some 200 feet--and at the bottom of said shaft had entries leading out from the shaft, and cross-entries leading from the main entries, and rooms turned off from the main and cross-entries; that leading off from the bottom of said shaft was one entry known as the main east entry; and that on said main east entry the defendant for a long time prior to December 2, 1912, had tracks laid on said main east entry, composed of iron rails placed on wooden cross-ties, and over said tracks cars were drawn by means of mules up to the switch known as the "double parting" in said main east entry, from which double parting the cars were hauled on said main east entry to the bottom of the shaft, to be hoisted through the shaft to the surface of the earth. Plaintiff further avers that he had, prior to December 2, 1912, been employed as a coal digger, and was employed in room 7, turned off ----- entry, turned off ----- entry; that the defendant had in its employ William Brown, who was the mine boss in charge of the defendant's said mine, said Brown having full charge of said mine, and full authority to hire and discharge all the employes in said mine, including this plaintiff, and he had charge of the work, machinery, and the placing and disposing of, hiring and discharging employes therein; that on December 2, 1912, the said William Brown, mine boss of defendant as aforesaid, instructed this plaintiff to drive a mule in the hauling of coal, dirt, rock and slate from the various parts of the mine to the bottom of said shaft, and that among the entries he had to travel in the work assigned to him by the said mine boss was the said main east entry, and that he did travel through the said main east entry in the performance of his work, and doing the duties assigned to him by the said mine boss, Brown, as aforesaid; that on December 2, 1912, plaintiff was under the direction of the defendant, through its said mine boss, Brown, as aforesaid, hauling a carload of dirt through the said main east entry; that attached to said car was a mule, which this plaintiff was driving for the purpose of hauling said car of dirt as he was instructed to do by the said defendant; that the top of said car which he was driving as aforesaid extended up to within about one foot of the roof of said main east entry. And plaintiff avers that in driving down said main east entry he was, in accordance with the custom, rules and usage obtaining and existing in defendant's mine, and with the knowledge and consent of defendant, and by the instructions of defendant, sitting on said car of dirt, and that it was necessary for him to bend his body forward so as to prevent it from being struck by coming in contact with the roof, which roof was about one foot above the car as aforesaid. Plaintiff further avers that as he was driving down said main east entry as aforesaid, and under said roof, at a point about feet from the bottom of the shaft, a large boulder was carelessly and negligently suffered and permitted, and for a long time had been suffered and permitted, to project out and down from the roof for a distance of some six inches, and it thus and thereby came in contact with and jammed against plaintiff's shoulders, injuring him as hereinafter described. That said boulder had for a long time prior to December 2, 1912, carelessly and negligently been suffered and permitted to project out and down from the roof, and had by the defendant been carelessly and negligently permitted to thus be and to thus remain in said roof, although it was likely to injure this plaintiff or anyone else driving through the mine, while riding upon a mine car, in the usual course of their work; that the said main east entry was used by the employes of defendant in driving through said entry during various times every working day, in the discharge of the defendant's business; and plaintiff avers that said stone carelessly and negligently projecting out and down from the said roof of the said main east entry as aforesaid did strike this plaintiff's left shoulder and the top of his back, and the said car in which the plaintiff was riding was moving forward rapidly at said time, and the said projecting stone did wedge this plaintiff down against and onto the said car in which he was riding, and did so firmly wedge this plaintiff between the said projecting stone and the said car that it stopped the said car, and the mule attached to said car continued to pull forward, but was unable to move said car on account of the plaintiff being wedged in between the top of said car and the said projecting stone from the roof as aforesaid; that the mule, in pulling forward, did further mash this plaintiff so that he was thrown off to the side of the car in an unconscious condition, and remained unconscious for more than one hour, and further injuring this plaintiff by causing a curvature of the dorsal vertebrae of the spine of this plaintiff, and of the sixth, seventh, eighth, ninth, tenth and eleventh dorsal vertebrae; and did jam and injure the entire back and spine and the back of both shoulders of the plaintiff, and did bruise the top and the back of his head, and did puncture and injure both his lungs, and bruise and injure his bowels, kidneys, stomach, and did crush and crowd his stomach, bowels and lungs downward in his body, which produced paralysis of the spinal nerves and displacement of the stomach, bowels, kidneys and liver, and did crowd and push his bowels down into his pelvic cavity, all to the permanent injury of the plaintiff, and said injuries as aforesaid did affect all the nerves in the body of this plaintiff, which has left him a nervous wreck, and has resulted in injury to his mental condition, causing him lapse of memory and partial loss of mind. Plaintiff avers that before said injuries, he was a strong able-bodied man of twenty years, capable of earning and did earn $ 5 per day as a coal miner, and that since this injury plaintiff has not been able to do any work, and is permanently injured. Plaintiff avers that said injury was caused solely by the carelessness and negligence of the defendant as aforesaid in carelessly and negligently having and permitting a boulder or stone to project out of the said roof in the said main east entry, a distance of six inches, in such a manner as to cause it to come in contact with the bodies of drivers in the usual course of their work as aforesaid, and plaintiff has been injured by said carelessness and negligence of the defendant in the sum of $ 10,000, for which he demands judgment.
The appellant, in arguing its motion to make the complaint more definite and certain, said: ...
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