J. Woolley Coal Co. v. Tevault

• Decision Date: 21 February 1918
• Docket Number: No. 22962.,22962.
• Citation: 118 N.E. 921,187 Ind. 171
• Parties: J. WOOLLEY COAL CO. v. TEVAULT.
• Court: Indiana Supreme Court

187 Ind. 171

118 N.E. 921

J. WOOLLEY COAL CO.

v.TEVAULT.

No. 22962.

Supreme Court of Indiana.

Feb. 21, 1918.

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

Action by Fannie T. Yoakum, as administratrix of the estate of Fred Yoakum, against the J. Woolley Coal Company. From a judgment of plaintiff, defendant appeals. During the pendency of the appeal, plaintiff administratrix died, and Leander C. Tevault, administrator de bonis non, was substituted. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Affirmed.

For dissenting opinion, see 119 N.E. 485.Albert W. Funkhouser and Arthur Funkhouser, both of Evansville, and Arch Stevenson, of Rockport, for appellant. M. R. Tweedy and U. W. Youngblood, both of Booneville, and Swan & Mason, of Rockport, for appellee.

SPENCER, C. J.

This action was instituted by Fannie T. Yoakum, as administratrix of the estate of Fred Yoakum, her deceased husband, to recover damages for his death through alleged negligence on the part of appellant. During the pendency of this appeal from a judgment for plaintiff, Mrs. Yoakum has died, and, on proper motion, Leander C. Tevault, administrator de bonis non, has been substituted as party appellee.

It appears from the record that at the time he received the injuries which caused his death Yoakum was in the employ of appellant as helper to Keith Hayne, the operator of a machine used in appellant's coal mine for the purpose of cutting under the coal at the base of the working face of the vein. Yoakum's work required him to kneel near the face of the coal and to remove and shovel back the slack and coal which was cut away by the machine. While he was in this position a mass of coal fell on him from the face of the vein and so crushed him as to cause his death.

The complaint on which the case was finally submitted to the jury is in two paragraphs, each of which charges that on the evening before the accident which resulted in Yoakum's injury and death two loaders in the employ of appellant, Broshears and Esterline, shot down the coal from the face of the vein after it had been cut under, and had, on the following morning, loaded and removed the coal which had thus been shot down, preparatory to placing the face of the coal in condition again to be cut under by the machine operator and his helper. The first paragraph of complaint charges negligence on the part of said loaders in failing to pick and down and remove large quantities of coal which, although cracked and loosened by the shots that had been fired, had not fallen, but had remained standing against and clinging to the face of the coal. It is further alleged that it was a part of the work of the loaders under their employment to pick down and remove all loose coal, to examine the face of the vein, and so to prepare the same as to leave it in a safe condition for the machine operator and his helper. This paragraph also alleges that the loaders knew of the cracked, loose, and dangerous condition of the face of the coal at the time they left it to be cut under, and that decedent had no notice or knowledge of such condition.

The other paragraph of complaint contains, in substance, the same charges of negligence as are made in the first, and alleges further that Hayne was negligent in his operation of the machine used in cutting under the face of the coal. The charge thus made is that ordinary care required the machine operator, in cutting under the coal at the face of a vein, to leave uncut a portion of the coal, known as a “stub,” to serve as a brace or support for the coal above, but that in the present instance the operator negligently failed to leave such stub or support, and the want thereof caused the cracked and loose coat to fall.

Each paragraph of the complaint is based on the Employers' Liability Act of 1911 (Acts 1911, p. 145; sections 8020a-8020k, Burns 1914) and the principal questions presented by the appeal, which arise out of certain instructions given and refused, require a consideration of sections 2 and 3 of that act, particularly as to their effect on the doctrines of contributory negligence and assumption of risk in personal injury actions between master and servant. Preliminary to our consideration of these issues, however, it is important to note that several provisions of the act in question have already been brought to the attention of this and the Appellate Court, and their interpretation, in part, at least, judicially established. In order, therefore, more clearly to outline the inquiry in the present instance, and for the purpose also of indicating the sense in which some of the statements made in earlier decisions are to be interpreted, we state briefly the substance of the decisions in the principal cases to which reference is made.

[1] (1) The Employers' Liability Act of 1911 is constitutional in all its provisions. Vandalia R. Co. v. Stillwell, 181 Ind. 267, 104 N. E. 289, Ann. Cas. 1916D, 258;Terre Haute, etc., R. Co. v. Weddle, 183 Ind. 305, 307, 108 N. E. 225;Kingan & Co. v. Clements, 184 Ind. 213, 215, 110 N. E. 66;Vivian Collieries Co. v. Cahall, 184 Ind. 473, 486, 110 N. E. 672;Goshen Milling Co. v. Bailey, 114 N. E. 869.

[2] (2) The statute does not purport to authorize a recovery for injuries sustained by a servant without negligence on the part of the master, or those for whose acts he is responsible, and such negligence still remains the essence of liability in all actions brought under its provisions. Vandalia R. Co. v. Stillwell, supra, 181 Ind. at p. 271, 104 N. E. 289, Ann. Cas. 1916D, 258;Standard Steel Car Co. v. Martinecz (App.) 113 N. E. 244, 247;S. W. Little Coal Co. v. O'Brien (App.) 113 N. E. 465, 468;New York, etc., R. Co. v. Allen (App.) 113 N. E. 315.

[3] (3) Section 1 of the act (section 8020a, Burns 1914) abrogates the common-law rule of assumed risks in so far as it applies to the particular risk of injury through the negligence of a fellow servant, and the failure of a fellow servant to exercise reasonable care for the safety of a coworker engaged in a common employment is now deemed to be a breach of duty on the part of the master, and is governed by the rules of law applicable thereto. Vandalia R. Co. v. Stillwell, supra, 181 Ind. at p. 273, 104 N. E. 289, Ann. Cas. 1916D, 258;Chicago, etc., R. Co. v. Mitchell, 184 Ind. 383, 390, 110 N. E. 215;Chicago, etc., R. Co. v. Mitchell, 184 Ind. 588, 591, 110 N. E. 680.

The above proposition are so firmly established as to render unnecessary their discussion at length in this opinion, and they are to be taken as a basis to be recognized throughout our inquiry into the questions raised in the present appeal. In some of the decisions above cited, and in others of the decided cases, various provisions contained in sections 2 and 3 of the Liability Act have also been considered, and the conclusions therein reached will be noted in our present consideration of those sections.

[4][5][6][7][8][9] Section 2 of the act (section 8020b, Burns 1914) contains four separate provisions, of which the first is a restatement, in substance, of the rule relative to the burden of proof on the issue of the injured employé's want of due care and diligence which previously existed under earlier legislative enactment. Section 362, Burns 1914; Vandalia R. Co. v. Stillwell, supra, 181 Ind. at page 273, 104 N. E. 289. Ann. Cas. 1916D, 258.

The second provision is that:

“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.”

This provision, however, finds a corollary in the first provision of section 3 of the act which is as follows:

“In any action brought against any employer under or by virtue of this act to recover damages for injuries or the death of, any of his, its or their employés, such employé shall not be held to have assumed the risks of the employment in any where the violation of such employer or his, its or their agents or employés of any ordinance or statute enacted, or of any rule, direction or regulation made by any public officer or commission, contributed to the injury or death of such employé.” Section 8020c, Burns 1914.

On comparison, it will be noted that the above correlative provisions are directed to the legal effect of substantially the same influence, and that their distinction rests largely in a transposition of terms. In the one, it is provided that the injured employé shall not be deemed guilty of contributory negligence by reason of his assumption of the risk of his employer's violation of a statute or ordinance, etc., while, in the other, he is relieved of all assumption of risk where such violation on the part of the master contributed to his injury. Since contributory negligence on the part of an employé pre-supposes negligence on the part of his employer, it is apparent that each provisions, in its legal effect, announces the same rule, viz.: That, where an employer fails to heed a legislative or administrative command to which he is bound to conform, he is negligent per se, and if his servant is injured as a result of such failure, however apparent, the latter's right to a recovery shall not be denied as a matter of law solely through a plea that he assumed the risk of injury or was negligent in continuing at his employment. Neither of these clauses, however, restricts the defense that the servant, under the circumstances in issue, failed to use due care for his own safety.

Passing, now, to the third provisions of section 2, viz. that “In actions brought against any employer under the provisions of this act for the injury or death...