Island Coal Co. v. Swaggerty
| Decision Date | 13 January 1903 |
| Docket Number | 19,643 |
| Citation | 65 N.E. 1026,159 Ind. 664 |
| Parties | Island Coal Company v. Swaggerty |
| Court | Indiana Supreme Court |
Original Opinion of January 16, 1901, Reported at: 159 Ind 664.
Complaint is made that in the opinion heretofore rendered in this cause it was held that all of the questions presented were ruled by the case of Davis Coal Co. v. Polland, 158 Ind. 607, 62 N.E. 492. Upon a reexamination of the principal brief of appellant it appears that the predominant proposition urged was that appellee had assumed the risk but, after a full consideration of the matter, we have concluded to review the particular points on which a rehearing is sought.
The action is for a personal injury sustained by appellee from a descending elevator while employed in the coal mine of appellant, owing to the alleged negligence of the latter. The case was tried upon the second paragraph of the amended complaint, and the first question presented is as to the sufficiency of said paragraph. According to said paragraph, the appellee received his injury while engaged in cleaning out a sump or pit, extending to a depth of six feet below the lower surface of the mine, that was constructed for the purpose of so receiving the elevator operated in the shaft that the floor of said elevator might rest on a level with the surface of the mine when the elevator was at the bottom of the mine.
By the second paragraph of the amended complaint it is sought to charge appellant with negligence on two grounds: (1) In failing to maintain the statutory code of signals relative to the use of elevators in coal mines; and (2) because of the omission of the mine boss, who represented the appellant in all things in the management of the interior of said mine, in failing to stop the elevator in its descent by the pulling of the cord attached to the whistle valve, as it is alleged that he might have done, as he stood on the edge of the sump in which he had ordered appellee to work, and saw the elevator descending towards him. The question as to whether the last stated cause of negligence, instead of both, appears to have been the proximate cause of the injury is not urged, and therefore we do not consider it. As the case is presented in argument on the motion for a rehearing, we feel at liberty to treat the complaint as charging both grounds of negligence.
There is no merit in the claim that the complaint shows on its face that appellee was guilty of contributory negligence. The complaint alleges that he was injured without any negligence on his part, and the specific facts averred are not sufficient to overcome the force of such general averment.
In respect to the first ground of negligence above stated, the complaint is not open to the objection of appellant's counsel that appellee assumed the risk. The complaint discloses that appellant had omitted to establish the code of signals required by statute, § 7470 Burns 1901, and had negligently caused the movements of said elevator, in respect to the stopping and lowering of the same, to be governed by the same signal,--a single blast of the whistle,--and that by reason of a misapprehension by the engineer of the purpose of such signal in the particular instance he lowered the elevator into the sump, instead of stopping the same, thereby injuring appellee.
The claim that under the first charge of negligence appellee assumed the risk is shown to be erroneous by the late case of Davis Coal Co. v. Polland, 158 Ind. 607, 62 N.E. 492. The doctrine of assumption of risk does not apply to a case where the injury occurs by reason of the negligent nonobservance of a positive and fixed duty enjoined by a statute. The same proposition meets most of the objections to instructions given and refused. As to the second charge of negligence, the complaint states a cause of action.
It is further objected, however, that certain instructions given, that were founded on said omission of the mine boss, were improper. The complaint is not based on the employer's liability act. Appellant's counsel objects to the instructions mentioned on the ground that the mine boss was a fellow servant of appellee. If this be true, appellee must be held to have assumed the risk of the negligence of a fellow servant, in the absence of any claim that the master had knowledge that he was negligent. It is undoubtedly the law that mere difference in rank between the servant injured and the servant whose negligent omission occasions the injury does not make the latter a vice principal. Indiana Car Co. v. Parker, 100 Ind. 181; Krueger v. Louisville, etc., R. Co., 111 Ind. 51, 11 N.E. 957; Pennsylvania Co. v. Whitcomb, 111 Ind. 212; Justice v. Pennsylvania Co., 130 Ind. 321, 30 N.E. 303; New Pittsburgh, etc., Co. v. Peterson, 136 Ind. 398, 43 Am. St. 327, 35 N.E. 7; Bedford Belt R. Co. v. Brown, 142 Ind. 659, 42 N.E. 359; Robertson v. Chicago, etc., R. Co., 146 Ind. 486, 45 N.E. 655; Hodges v. Standard Wheel Co., 152 Ind. 680, 52 N.E. 391.
The master's duty is to use ordinary care to provide his servant with a safe working place, with safe machinery and appliances. If the master authorizes an agent to perform such duties, the agent, whatever his rank, stands in the place of the master. Indiana Car Co. v. Parker supra; Louisville, etc., R. Co. v. Graham, 124 Ind. 89, 24 N.E. 668; Ohio, etc., R. Co. v. Pearcy, 128 Ind. 197, 27 N.E. 479. The duty of the master is a continuing one. Indiana Car Co. v. Parker, supra. The principle of liability is not confined to negligent orders. Russ v. Wabash, etc., R. Co., 112 Mo. 45, 52, 20 S.W. 472, 18 L. R. A. 823. The master's duty requires performance. Until the agent selected by the master acts up to the limit of the duty of his master to act, the master's duty is not done. McElligott v. Randolph, 61 Conn. 157, 22 A. 1094, 29 Am. St. 181. In Shearman & Refield, Neg. (5th ed.), § 233, it is said: ...
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