Jackson Hill Coal Company v. Van Hentenryck

• Decision Date: 29 October 1918
• Docket Number: 9,617
• Citation: 120 N.E. 664,69 Ind.App. 142
• Parties: JACKSON HILL COAL COMPANY v. VAN HENTENRYCK
• Court: Indiana Appellate Court

120 N.E. 664

69 Ind.App. 142

JACKSON HILL COAL COMPANY v. VAN HENTENRYCK

No. 9,617

Court of Appeals of Indiana

October 29, 1918

Rehearing denied December 31, 1918.

From Parke Circuit Court; George D. Sunkel, Judge.

Action by Victor Van Hentenryck, by his next friend, Isidore Van Hentenryck, against the Jackson Hill Coal Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Beasley Douthitt, Crawford & Beasley and Maxwell & McFadden, for appellant.

Caldwell & Thomas and White & Henderson, for appellee.

OPINION

FELT, P. J.

This is an action for damages for personal injuries brought by Victor Van Hentenryck, by his next friend, Isidore Van Hentenryck, against the Jackson Hill Coal Company, an Indiana corporation.

The case was tried on the second and third paragraphs of amended complaint and an answer of general denial. The jury returned a verdict for appellee in the sum of $ 1,000, appellant's motion for a new trial was overruled, judgment was rendered on the verdict and this appeal taken.

The errors assigned and not specifically waived by appellant are based upon (1) the overruling of appellant's motion to make each paragraph of amended complaint more specific; (2) the overruling of appellant's separate demurrers to each of the second and third paragraphs of complaint, and the overruling of its motion for a new trial.

Omitting formal averments about which there is no controversy, the amended second paragraph of complaint, in substance, charges that on March 17, 1914, appellant was a duly organized corporation under the laws of the State of Indiana, and owned and operated a coal mine in Sullivan county, in said state, known as mine No. 2; that then and prior thereto it was engaged in business, trade and commerce in said state and in such business of mining coal employed more than five persons; that on March 9, 1914, plaintiff was sixteen years of age and physically and mentally immature and undeveloped; that on said day defendant employed him to work as a driver in said mine and placed him in charge of one of its mules; that to do the work required of him it was necessary for him to ride between the mule and car with one foot on the bumper of the car and the other on the tail chain by means of which the mule was hitched to and drew the car, and with one hand placed on top of the car and the other on the mule; that such work was inherently dangerous and hazardous to life and limb because of the liability of such driver to be thrown from his car or to be caught and squeezed between the car and the mule driven by him; that at that time plaintiff was wholly without experience in such work, all of which was known to defendant; that, because of his youth and want of experience, plaintiff was wholly unable to comprehend and judge of the dangers attending such work and was without capacity to do the work aforesaid; that it was the duty of defendant to use ordinary care to furnish plaintiff a reasonably sound, safe, fit and suitable mule with which to do the work required of him, and it did not do so, but carelessly and negligently provided him with a mule which was unsafe, dangerous, lame, mean, unreasonably slow, vicious, balky, and wholly unfit for such work, all of which defendant knew in time to have discontinued the use of said mule in time to have avoided the injury received by plaintiff; that on the eighth day after plaintiff was so employed, and while in the discharge of the duties required of him as such driver, he was hauling a car heavily loaded with coal toward the cage; that the entry was steep, and on account of such facts the car moved rapidly down the entry and ran against the mule aforesaid, because he was lame, unreasonably slow and balky; that plaintiff was riding in the manner above indicated, and was caught and squeezed between said mule and car; that thereupon, to save himself from being crushed and killed, he struck the mule, which suddenly jumped and threw plaintiff under the car and injured him; that thereby his left leg was broken, cut, bruised and crushed, his back and spinal column wrenched, sprained and torn; that in healing the bones of his leg were so united that his leg is bent and bulged forward; that his injuries are permanent and were all caused solely by the wrongful, careless and negligent acts of defendant aforesaid, and without any fault on his part. Facts are also alleged to show how long plaintiff was confined on account of his injuries, the amount expended for medical treatment and nursing, his loss of time, his earning capacity and the depreciation thereof on account of such injuries.

The amended third paragraph in most of its averments is similar to the second paragraph, except it is therein alleged that it was the duty of defendant to furnish plaintiff with a tail chain of suitable length, and one which would enable him as such driver to ride between the mule and car with one foot on the bumper of the car and the other on the tail chain, with one hand on the top of the car and the other on the mule; that defendant did not exercise ordinary care to discharge such duty to plaintiff, but carelessly and negligently furnished him a tail chain seven feet in length, which was wholly unfit for such use, because when stretched to its full length plaintiff could not reach from the car to the mule and ride in the manner aforesaid, all of which was known to defendant in time to have repaired said tail chain, or to have discontinued its use in time to have avoided the injury suffered by plaintiff. Facts are then averred which show that plaintiff's fall and injury were caused by the use of such chain, which allowed the mule to move so far from the car that plaintiff could not reach from the car to the mule, and on account thereof fell and was injured as set out in said second paragraph of complaint.

Appellant moved to have the second amended paragraph of complaint made more specific by showing (1) in what way plaintiff was physically and mentally immature, and the length of time such facts were known to appellant; (2) whether it was necessary for plaintiff to ride between the mule and car as alleged; (3) the grade or amount of fall in the entry where the accident occurred; (4) in what way, and with what he struck the mule and the amount of the force used in so doing; (5) in what way defendant failed to use ordinary care as to said mule and for what period of time appellant knew of the defects and unfitness of the mule; (6) what connection, if any, the leap or jump of the mule had with the fall of the plaintiff.

The averments that plaintiff was physically and mentally immature, taken in connection with the averments as to his age and inexperience, are sufficiently definite for any purpose they serve in the case. They have some bearing upon the propositions as to whether appellee knew and appreciated the hazards of the work he was employed to do, but the complaint would be good without the charge of immaturity. By its material averments appellant was fully advised as to the character of the charge of negligence made against it, and given ample information to enable it to prepare its defense thereto.

The averments relating to the second, fourth, fifth and sixth points above indicated, as far as material, are sufficiently definite and specific to fully advise appellant as to every phase of the charge made against it. Some of the details requested could only be supplied by averring mere evidentiary facts.

The facts called for in the third point were peculiarly within the knowledge of appellant, or easily ascertainable by it. Any additional averment could not have aided appellant, either in the preparation of its defense or in the trial of the case.

By similar motion directed to the amended third paragraph of complaint, appellant asked that appellee state (1) why appellant owed him the duty of using ordinary care to furnish a tail chain of suitable and proper length; (2) how long before the accident it knew the chain was unfit and unsuitable as alleged; (3) what caused him to fall, and whether the fact that he was unable to reach from the car to the mule caused him to be thrown to the ground.

The allegations show the relation of employer and employe, the character of the work to be done by appellee, and the equipment furnished by appellant for the use of appellee as a driver. They also show that the alleged defects or unfitness existed at the time the tail chain and mule were furnished appellee. Under such averments appellant is presumed to have known of the defects and unfitness when the alleged appliances were furnished. The duty arises as a matter of law from the relation of the parties. The averments show the relation and the law supplies the reason. Further than a sufficient statement of facts, good pleading does not require or permit the elaboration of reasons for the rules of law applicable to the case made by the facts. If the facts averred are not sufficient, the statement of such reasons will not supply the facts or overcome the defects in the pleading. The details called for by the motion were either sufficiently shown by the averments made or were not of such a character as to deprive appellant of any substantial right, or to prejudice its defense, by the action of the trial court in overruling such motion. For the reasons already stated, the court did not commit reversible error by overruling the motions aforesaid. Diamond Block Coal Co. v. Cuthbertson (1906), 166 Ind. 290, 296, 76 N.E. 1060; Premier Motor Mfg. Co. v. Tilford (1916), 61 Ind.App. 164, 167, 111 N.E. 645; Haehnel v. Seidentopf (1916), 63 Ind.App. 218, 114 N.E. 422; S.W. Little Coal Co. v. O'Brien (1917), 63 Ind.App. 504, 113 N.E. 465, 467, 114 N.E. 96.

Appellant contends that...