Mitchell Lime Co. v. Nickless

• Decision Date: 08 October 1908
• Docket Number: No. 6,381.,6,381.
• Citation: 44 Ind.App. 197,85 N.E. 728
• Parties: MITCHELL LIME CO. v. NICKLESS.
• Court: Indiana Appellate Court

44 Ind.App. 197

85 N.E. 728

MITCHELL LIME CO.

v.NICKLESS.¹

No. 6,381.

Appellate Court of Indiana, Division No. 2.

Oct. 8, 1908.

Appeal from Circuit Court, Lawrence County; James B. Wilson, Judge.

Action by Carrie Nickless, administratrix, against the Mitchell Lime Company, for negligent death. From a judgment for plaintiff, defendant appeals. Reversed.

E. E. Stevenson and J. H. Edwards, for appellant. Henry P. Pearson, for appellee.

RABB, C. J.

The appellant was engaged in the manufacture of lime from oölitic limestone, and as incident to the business quarried the stone from which the lime was manufactured from ledges, and in so doing used explosives to break and shatter the stone from the ledge. Appellee's intestate was an employé of the appellant, engaged as a common laborer in the stone quarry, and while so engaged was injured by the fall of loose rock from the ledge, which injuries resulted in his death. This action was brought by appellee to recover damages for her intestate's death, charging that the same resulted from the negligence of appellant. The complaint is in two paragraphs. Appellant's demurrer to each being overruled, the cause was submitted to a jury for trial, a general verdict was returned in favor of the appellee, and with the general verdict answers to interrogatories submitted to the jury. Appellant's motion for judgment in its favor on the answers to interrogatories and its motion for a new trial were each overruled, and judgment rendered on the verdict in favor of appellee. The errors assigned and relied on here for a reversal arise upon the rulings of the court below upon the demurrer to the complaint, the motion for judgment in favor of appellant on the answers to interrogatories, and the motion for a new trial. We will consider them in the order in which they are presented.

The first paragraph of the complaint, after the formal averments in reference to the appointment of appellee as administratrix of the estate of the deceased and descriptive of the business in which the appellant was engaged, averred that on the 1st day of January, 1906, the deceased was in the employ of the appellant, and while in the performance of the duties of his employment was engaged in breaking limestone at the bottom of appellant's quarry, and in close proximity to the face of a ledge of limestone; that while so engaged he was struck and fatally injured by the fall of a large piece of stone from said ledge, which had been jarred loose by blasting. These allegations then follow, upon which appellant's liability is predicated: “That said injury was due to the negligence of defendant in failing to exercise reasonable care in furnishing decedent a safe place in which to work; *** that decedent did not know that said stone was loose and likely to fall at any time; *** that said stone was loose and likely to fall at any time, and defendant knew that it was loose and likely to fall, *** and negligently failed to take any steps whatever to protect decedent from the effect *** of its fall, *** but negligently permitted the decedent to work in its immediate vicinity, to the full knowledge of defendant as to where decedent was located, and with full knowledge on defendant's part of the true condition and of its likelihood to fall, without in any manner warning decedent; that by reason of said acts of negligence *** in permitting decedent to work in its immediate vicinity, without warning him of the likelihood of said stone to fall, the place where decedent was required to work was rendered unsafe, and said injury and death was brought about solely by said acts of negligence.” The second paragraph of the complaint contains the same averments that are contained in the first, and in addition there are averments charging that the superintendent of the work, whom it is charged was a vice principal, was incompetent and negligent in the discharge of his duties, and that the appellant was guilty of negligence in employing him and retaining him in their service with knowledge of his incompetency. This complaint could not be commended as a model pleading. There is much confusion in the statement of facts going to make the appellee's case, and there are many redundant and meaningless averments that add to the confusion of statements. But each paragraph does directly aver that the stone which fell on the deceased and caused his injury was loose and likely to fall, and that the appellant knew it and with this knowledge permitted the appellee's intestate to carry on his work in such proximity to the stone that, if it fell, it would injure him. This was sufficient to charge the appellant with negligence, and the direct averment that the deceased did not know that the rock was loose and likely to fall sufficiently shows that the risk was not assumed by the appellee's decedent. Malott v. Sample, 164 Ind. 645, 74 N. E. 245, and cases cited.

It is insisted that, while appellant is sufficiently charged with notice of the danger, the complaint does not aver nor show by the facts averred that appellant possessed this knowledge a sufficient length of time before the accident happened to have warned the deceased of the dangers. The charge here is that the appellant, with knowledge of the danger, “permitted” the deceased to carry on his work in the dangerous place. What does the word “permitted” mean? It necessarily implies power to prevent. It means that the deceased, with appellant's knowledge, worked in the presence of the danger, when appellant could have prevented him from so doing. The word used necessarily implied time and opportunity on the part of appellant to warn the deceased of the danger.

The second paragraph of the complaint was evidently intended to charge the appellant with negligence in the matter of the employment of its superintendent. It is unnecessary to consider its sufficiency upon this theory, for the manifest reason that it is a matter of no consequence whether the appellant was or was not guilty of negligence in the employment of one who acts as a vice principal. The appellant would be responsible for his negligence, if he were guilty of any, whether it had been guilty of negligence in his employment or not, as his negligence would be its negligence. The rule creating a liability on the part of a master to his servants for negligence in the employment of agents to carry on his work has application only where it relates to the employment of fellow servants, for whose negligence the master would not otherwise be responsible to co-employés. Both paragraphs state the same cause of action, and both are sufficient to withstand a demurrer.

The following answers were returned by the jury to interrogatories submitted to them:

“Int. 50. Was not the place from which the rock fell and injured Ambrose Nickless, and the rock that fell and struck him, before it fell, and its condition, at all times in full, plain, and open view of Ambrose Nickless?” Ans. “Yes.”

“Int. 52. If Ambrose Nickless had looked for loose stone in the wall or face of the quarry, would he have seen the rock that struck and injured him?” Ans. “Yes.”

“Int. 71. What caused the rock to fall...