J. Wooley Coal Co. v. Tevault

• Decision Date: 14 May 1918
• Docket Number: No. 22962.,22962.
• Citation: 187 Ind. 171,119 N.E. 485
• Parties: J. WOOLEY COAL CO. v. TEVAULT.
• Court: Indiana Supreme Court

187 Ind. 171

119 N.E. 485

J. WOOLEY COAL CO.

v.TEVAULT.

No. 22962.

Supreme Court of Indiana.

May 14, 1918.

Appeal from Circuit Court, Spencer County; Ralph E. Roberts, Judge.

Dissenting opinion.

For majority opinion, see 118 N. E. 921. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914.

LAIRY, J.

The court in deciding the question presented by the record and briefs in this case was required to determine the extent to which the common-law liability of a defendant in actions for negligence falling within the provisions of the statute under consideration is affected by the provisions of such act. After a careful consideration of the facts in question as a whole, and after a consideration of the several sections and provisions of the act, I find myself unable to give my assent to the construction which the court has placed upon some of its provisions. The construction to be placed on this act is of so much importance that I feel constrained to express my views in a separate opinion.

By the first section of the act the rule known at common law as the fellow-servant rule is abrogated where five or more persons are employed. Prior to the enactment of this statute the common-law rule had become firmly settled that a master is not responsible to those engaged in his employment for injuries suffered by them as a result of negligence on the part of other servants engaged in the same common or general employment. The provision of section 1 of the act to the effect that an employer under the conditions stated shall be liable for the injury or death of an employé resulting in whole or in part from the negligence of his, its, or their agents, servants, employés, or officers, has the effect to make the employer liable to his employés for the negligence of servants engaged in the same common or general employment to the same extent that he is liable for his own negligence or that of his vice principals.

Appellee asserts that this provision of section 1 wholly abrogates the doctrine of assumption of risk in its application to dangers occasioned by the negligence of fellow servants. It has been frequently said that a servant by his contract of employment assumes the risk of all dangers caused by negligence on the part of his fellow servants, which statement is generally regarded as the reason underlying the common-law fellow-servant rule which denies to a servant the right to recover for injuries so caused. Appellant asserts that the provisions of section 1 abrogate the fellow-servant rule, and that the doctrine of assumption of risk goes with it in so far as the dangers occasioned by the negligent acts of fellow servants are concerned. It is argued that the provision abolishing the fellow-servant rule relieved employés of the assumption of risk as to all dangers resulting from the negligence of fellow servants, and that, in this case, if it appears that the dangerous condition of the face of the coal was the result of negligence on the part of the loaders, who were fellow servants of decedent, then decedent cannot be held to have assumed the risk of such danger, even though he knew of such condition or by the exercise of due care could have learned it.

While the reasoning seems plausible, and the conclusion reached appears logical, I cannot give my approval to the proposition so advanced. It cannot be true that the provisions contained in section 1 of the act entirely absolve the servant from the assumption of risk as to all danger occasioned by the negligence of coservants. At common law a servant was precluded from recovering for an injury resulting from the negligence of a fellow servant without regard to his actual or constructive knowledge of the danger occasioned thereby. The provision of the statute which we are now considering imposes liability on the employer for negligence of his servant causing injury to a coservant. If the injury to a coservant results from a dangerous condition caused by the negligence of a fellow servant, he may rely upon such negligence for a recovery, in the absence on his part of actual or constructive knowledge of the danger; but if he knew of the danger occasioned by the negligence of this fellow servant or if he could have known of it by the exercise of reasonable care, the doctrine of assumed risk applies unless abrogated by some other provision of the act. The liability of the master for the negligence of his employés is this placed on the same basis as his liability for his own negligence, and that of his vice principals. To hold otherwise would be to impose upon an employer a greater responsibility in respect to the negligence of an employé than would rest on him on account of his own negligence or that of a vice principal, as in the latter case he might invoke the doctrine of assumed risk as to known dangers, but in the former he would be precluded by the statute from doing so. I cannot assent to such a construction.

Section 2 of the act deals with the question of contributory negligence. The first sentence places the burden of proving contributory negligence on the employer in conformity with the act of 1899 (Acts 1899, p. 58). The second sentence is somewhat obscure for the reason that the language employed seems to confuse the defense of contributory negligence with the rule of assumption of risk. The language is:

“No such employé who may have been injured or killed shall be held to have been guilty of negligence or contributory negligence by reason of the assumption of the risk thereof in any case where the violation by the employer or his, its or their agents or employés, of any ordinance or statute enacted, or of any rule, regulation or direction made by any public officer, bureau or commission, was the cause of the injury or death of such employé.”

In determining the meaning of this sentence, the court will look to the law as it existed prior to the enactment of the statute, and to the evil which it was intended to remedy. The courts of last resort in this state had held that a servant could not be denied a recovery on the ground that he had assumed the risk of a danger which was the result of the failure of the matter to obey or conform to a statute or ordinance, but the courts likewise held that the master in a case might defend on the ground that the servant was guilty of contributory negligence in encountering the danger so created. Balzer v. Warring (1911) 176 Ind. 585, 590, 95 N. E. 257, 48 L. R. A. (N. S.) 834;Davis Coal Co. v. Polland (1902) 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319. It was the evident purpose of the Legislature to modify the law as thus announced so as to entirely cut off the defense of contributory negligence in cases where the servant voluntarily encountered a danger occasioned by the failure of the master to obey or conform to any ordinance or statute enacted, or to any rule, regulation, or direction made by any public officer, bureau, or commission; the meaning of the language being that no employé shall be held guilty of contributory negligence by reason of his having voluntarily encountered a known danger of the kind specified. Where an injury results from a danger arising in the manner prescribed the servant cannot be denied a recovery on the ground of assumption of the risk under the former holdings of this court, and the provision under consideration precludes the employer from making any defense in such a case on the grounds of contributory negligence.

The third sentence of section 2 deals with contributory negligence of the servant in encountering dangers other than those specified in the preceding sentence. As to such dangers it provides that:

“In actions brought against any employer under the provisions of this act for the injury or death of any employé, it shall not be a defense that the dangers or hazards inherent or apparent in the employment in which such injured employé...