Miami Coal Co. v. Kane

• Decision Date: 07 December 1909
• Docket Number: No. 6,862.,6,862.
• Citation: 90 N.E. 13,45 Ind.App. 391
• Parties: MIAMI COAL CO. v. KANE.
• Court: Indiana Appellate Court

45 Ind.App. 391

90 N.E. 13

MIAMI COAL CO.

v.KANE.¹

No. 6,862.

Appellate Court of Indiana, Division No. 2.

Dec. 7, 1909.

Appeal from Circuit Court, Putnam County; Jno. M. Rawley, Judge.

Action by Lawrence Kane against the Miami Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.Lamb, Beasley & Sawyer and S. A. Hayes, for appellant. A. C. Miller, Geo. A. Knight, and G. S. Payne, for appellee.

COMSTOCK, J.

Appellee brought this action to recover damages for personal injuries alleged to have been sustained by appellee while in the employ of the appellant as a coal miner working in appellant's mine, because of the alleged negligence of appellant in failing to visit appellee's working place through its mine boss, failing to supply a blackboard upon which appellee could register his request for timbers, and failing to furnish appellee with suitable props and timbers at his working place to secure the roof of his room, as result of which alleged negligence the roof of appellee's working place caved in, and caused the injuries complained of. Appellant's demurrer to the amended complaint for want of facts was overruled, and appellant answered by general denial. A trial by jury resulted in a verdict in favor of appellee for $3,000. Judgment was rendered upon the verdict, and appellant's motion for a new trial overruled. This action of the court is relied upon for reversal of the judgment.

The only reasons for a new trial discussed are the giving to the jury of instructions Nos. 9 and 10, requested by appellee, and the refusal to give instruction No. 9, requested by appellant. Said instruction 9, given, informed the jury that the continuing of a miner in the employ of the owner or operator of a coal mine, with knowledge of the fact that such owner or operator is guilty of a breach of duty to furnish props or timbers with which to secure the roof of the working place of such miner, would not prevent a recovery for an injury suffered by such miner by reason of such breach of duty on the part of the owner or operator, that the risks which a miner assumes on entering upon his employment are those only which occur after the due performance by the employer of those duties which the law imposes upon it. Said tenth instruction told the jury that the duty of furnishing props, etc., was a duty imposed by statute; that the statute was designed to protect the employés in mines from dangers, not only apparent, but also those remote, and not apparent; that such safeguards are required by law, and, in the absence of notice of imminent or immediate danger, an employé is not required to quit work because the operator fails to comply therewith, but if, while in said employment, he is injured because of such failure, it is no defense, to an action brought for injury or death, to prove that such operator neglected to perform its duty in that behalf, and that such miner had knowledge of such fact. These instructions are sustained by numerous decisions of this state. The risks assumed by the servant are only such as arise after the master has discharged his statutory duty. Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899;American Rolling Mill Co. v. Hullinger, 161 Ind. 673, 67 N. E. 986, 69 N. E. 460; Island Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026; Monteith v. Kokomo, etc., Co., 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944;Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319;Hochstettler v. Mosier Coal, etc., Co., 8 Ind. App. 442, 35 N. E. 927;Buehner Chair Co. v. Feulner, 28 Ind. App. 479, 63 N. E. 239.

Said instruction 9, requested by appellant, reads as follows: “The law makes it the duty of one working in a coal mine, when he shall learn of an unsafe place, to notify the mine boss thereof, and to take a receipt from such mine boss, acknowledging the unsafe condition so reported. The law also makes it the duty of such person, after having reported such unsafe condition, not to return to work at such unsafe place until permission to do so shall have been given him by the mine boss. So in this case, if you find from a preponderance of the evidence that the plaintiff's room wherein he was assigned to work had become defective and dangerous because of the defective condition of the roof of said room, and that the plaintiff knew of such defective and dangerous condition, and, if you should further find that the plaintiff failed to notify the mine boss of such dangerous and defective condition, but, with knowledge of the same upon his part, he continued to work in the room assigned to him and under such dangerous and defective roof, and was thereby injured because of such defective and dangerous condition of said roof, said acts upon the part of the plaintiff would be acts of negligence contributing to his injury, and, if you so find, the plaintiff is not entitled to recover and your finding should be for the defendant.”

Appellant insists, not that the appellee had knowledge of some failure upon the part of the appellant to furnish props, etc.-the question of timbers or props was not involved in the...