Hymera Coal Mining Co. v. Mahan

• Decision Date: 30 April 1909
• Docket Number: No. 6,590.,6,590.
• Parties: HYMERA COAL MINING CO. v. MAHAN.
• Court: Indiana Appellate Court

44 Ind.App. 583

88 N.E. 108

HYMERA COAL MINING CO.

v.MAHAN.

No. 6,590.¹

Appellate Court of Indiana.

April 30, 1909.

Appeal from Circuit Court, Sullivan County; O. B. Harris, Judge.

Action by Frank B. Mahan against the Hymera Coal Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.John T. Hays and Will H. Hays, for appellant. William Tichenor, George W. Buff, and W. P. Stratton, for appellee.

ROBY, J.

This is an action to recover damages for personal injuries, alleged to have been sustained by appellee while in the service of appellant in a coal mine, charging appellant with negligence in failing to provide a safe working place, by negligently permitting the pillars, left standing for the support of the mine and the safety of the men, to become so thin and weak as to permit a shot, fired in an adjacent entry, to blow through and injure appellee. After formal allegations, setting forth the nature and organization of the defendant corporation and of the employment of the plaintiff thereby, it is averred that, by reason of plaintiff being employed by defendant as a servant, it was the duty of defendant to furnish him a safe place in which to work to protect him, and to that end it was the duty of defendant, by its mining boss, to visit and examine all working places in the mine every alternate day (this is required by statute), and to see that they were in proper condition, and that safety was assured, and to see that the entries and working places were kept upon the right and proper lines, and run in the right direction, so that the ribs and pillars of coal, left standing for the support of the mine and for the safety of the men working therein would not become so thin and narrow as to fail in furnishing such support and safety. It is alleged that the place where plaintiff was at work when injured was an entry about 8 or 9 feet wide, alongside another entry of the same width, and that the safety of the mine required that the pillar of coal left standing between the entries should be 16 to 18 feet thick; that it was usual in such places, and in this particular mine, to leave such thickness of coal standing; that it was not the duty of the plaintiff to examine and know for himself that the pillar was of the right and proper thickness, but that it was the duty of the defendant, through its mining boss, to make surveys and examinations, and to know that the pillars were of proper thickness. It is then averred that the defendant did not, through its mining boss, visit said plaintiff's working place as often as required by law, and did not make such examinations as to ascertain that the entry wherein plaintiff was working was running so close to the other entry alongside thereof as to render the pillar of standing coal between them not more than 8 feet thick, and so weak and thin as to make it dangerous for shots to be fired in the adjacent entry without danger to this plaintiff in his own working place, or, if it did make such examination, it negligently and carelessly failed and neglected to apprise the plaintiff of the danger, or to take any steps to protect him therefrom; that the said defendant carelessly and negligently allowed and permitted said pillar between said entries in said mine to become weak, thin, and dangerous, which fact was well known to the said defendant, or might have been known had it used proper diligence to ascertain the same, as it was its duty to do; that by reason of this thin, weak, and unsafe condition of the said pillar between plaintiff's working place and the entry adjacent thereto, caused, as aforesaid, by the carelessness and negligence of the defendant in not making proper examinations, and taking proper steps for plaintiff's protection, a certain shot, fired on the 8th day of December, 1903, by miners working in or near the adjacent entry, broke through said thin, weak, and unsafe pillar, and the coal thereby knocked down in the plaintiff's working place was hurled with great violence against the plaintiff, struck and fell upon him with great weight and force, and thereby greatly injured him as follows: (Describing the injuries.) It is finally alleged that at the time said shot was fired the plaintiff had no knowledge of the thin, weak, and unsafe condition of said pillar aforesaid; that said injuries occurred wholly through the fault and negligence of the defendant in carelessly and negligently allowing and permitting said pillar to be and become weak, thin, and unsafe, all of which might and could have been avoided had the said defendant, through its mining boss, visited and examined the working place of this plaintiff, and had seen that said entries were run in such manner as to have preserved the proper thickness of said pillar, or that proper steps were taken to protect the plaintiff from the danger attendant upon the shot being fired in or near the adjacent entry. The plaintiff further avers that there was nothing in the appearance of said pillar, as the same appeared from his working place, to indicate any danger, but that the same could have been discovered and ascertained, and said injuries could have been avoided, by the defendant if it had exercised such diligence as its duty required and demanded. Damages were prayed for in the sum of...