Jennings v. Ingle
| Decision Date | 28 March 1905 |
| Docket Number | 5,185 |
| Citation | 73 N.E. 945,35 Ind.App. 153 |
| Parties | JENNINGS v. INGLE |
| Court | Indiana Appellate Court |
From Vanderburgh Circuit Court; Louis O. Rasch, Judge.
Action by William Jennings against David Ingle. From a judgment for defendant, plaintiff appeals.
Affirmed.
Frank B. Posey, William C. Mason and W. E. Cox, for appellant.
Charles L. Wedding, for appellee.
Appellant was employed as a "jerryman" to work in appellee's coal mine. Under the terms of his employment he was required to gather up and remove fallen slate from the floor of the mining room, and also to take down and remove loose and hanging slate from the roof of the mine, for the purpose of making safe the place in which the miners work. While engaged in the line of his duty, a heavy piece of slate fell upon him, causing him serious injury. He brought this action to recover damages for the injury thus sustained and based his right to recovery upon certain acts of negligence on the part of the appellee. Two acts of negligence are charged: (1) That appellee failed to furnish and keep on hand a sufficient amount of props with which to secure the roof of the mine from falling; and (2) that a day or two before the mining boss had examined the room in which appellant was injured, and found it unsafe, and did not warn him of its condition. It was the duty of appellant to go to any of the mining rooms upon the call or request of a miner, to perform the duties required of him. In this case one of the miners informed him on Saturday afternoon or evening that this particular room in which he was injured was in bad condition; that slate had fallen to the floor, and ought to be removed; that certain places in the roof had become loose and dangerous; and that the slate should be taken down and removed, so that the miner working in that room could perform his duty safely. The following Monday morning appellant went to this particular room to perform the duty required of him. In taking down and removing some hanging slate from the roof, and to enable him to get it down, he knocked down a prop, and immediately thereafter the slate fell upon him, and he was injured. After the conclusion of the evidence introduced on behalf of the appellant, appellee moved that the court instruct the jury to return a verdict for him. This motion the court sustained, and gave a peremptory instruction, directing the jury to find for the appellee, which was done. Appellant's motion for a new trial was overruled.
Appellant assigned five reasons for a new trial: (1) That the verdict of the jury is contrary to the evidence; (2) that the verdict is contrary to law; (3) that the verdict is contrary to the law and evidence; (4) and (5) that the court erred in giving the peremptory instruction to find for the appellee.
1. The first reason assigned for a new trial is not known to the statute, and therefore does not present any question. Louisville, etc., R. Co. v. Renicker (1893), 8 Ind.App. 404, 35 N.E. 1047.
2. Also the third reason assigned is not recognized by the statute, and hence is not a reason for a new trial.
3. This leaves for our consideration the second, fourth and fifth reasons for a new trial, and they may be considered together, for it is the rule that a verdict improperly affected by errors of law occurring at the trial is contrary to law, and, also, that a verdict founded upon insufficient evidence is error of law, and therefore contrary to law. Robinson Machine Works v. Chandler (1877), 56 Ind. 575; Deal v. State (1895), 140 Ind. 354, 39 N.E. 930; Robbins v. Spencer (1895), 140 Ind. 483, 38 N.E. 522. It does not appear from the record whether the instruction given by the court was an oral or written instruction, and it is a question of grave doubt whether the instruction is in the record; but we will treat it as in, and give appellant the benefit of the error in giving it, if we find that it was erroneous.
The facts upon which the decision must rest are without conflict. As stated in a former part of this opinion, the appellant was a "jerryman" in the employ of appellee, who was the owner and operator of a coal mine. In his own language, his duties required him "to clean up loose slate, and take the loose slate that was hanging, ready to fall, take it down." Again he testified: "If there was any fallen slate it was the duty of the jerryman, the best I knew how, to clean it up and clear from the miners' way, and, if there was any hanging loose on the props, to remove the props and clear it back."
4. From the evidence of appellant, the following material facts are established: When he went into the mining room where he was injured he discovered a pile of slate lying on the right side of the room, and some hanging slate at the left. This slate that was hanging from the roof was about seven feet from the face of the coal. He sounded the roof by the use of a wedge, cleaned up the slate that had fallen, and went to take down the props, so as to remove the hanging slate. He was informed by one of the miners on Saturday, after work had ceased, that this slate ought to be removed. This miner told him that the room was too bad for him (the miner) to work in, and that it "needed cleaning up awful bad."
The object of sounding the roof was to determine whether the slate ought to come down, and to see if it was in a safe condition. After sounding it, appellant decided that it was all right, and he could take it down. Where he went to take down loose slate from the roof, the roof had been propped, and he first took down one prop, and then the second. He testified that if he had not taken down the props he could not have removed the loose slate from the roof. In the room where he was working there were probably 100 props. Appellant testified that at the place where he was working no additional props were needed, and if they had been needed they were at hand for his use. Other witnesses were called and testified concerning the unsafe condition of this mining room, but, as their evidence does not in anywise conflict with that of appellant, but, on the contrary, supports his evidence, we do not deem it necessary to set it out or consider it. The evidence further shows that it was the duty of appellant, whenever he received knowledge or information from any source that any room where miners were required to work needed cleaning up, to proceed at once to perform that duty.
Appellant was informed that the room where he was injured was in a dangerous and unsafe condition, and his duties required him to clean it up and make it safe. As a legal proposition, it matters not whether that information was conveyed to him by the mine boss, or one of the miners. He alleges in his complaint that...
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