Muren Coal & Ice Co. v. Copeland

• Decision Date: 11 January 1910
• Docket Number: No. 7,229.,7,229.
• Citation: 90 N.E. 489,46 Ind.App. 230
• Court: Indiana Appellate Court
• Parties: MUREN COAL & ICE CO. v. COPELAND.

46 Ind.App. 230

90 N.E. 489

MUREN COAL & ICE CO.

v.COPELAND.

No. 7,229.¹

Appellate Court of Indiana, Division No. 2.

Jan. 11, 1910.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Action by Bertha M. Copeland against the Muren Coal & Ice Company. From a judgment for plaintiff, defendant appeals. Affirmed.Edward P. Richardson, Arthur H. Taylor, and Thos. Duncan, for appellant. J. W. Brumfield and Stanley M. Krieg, for appellee.

RABB, P. J.

The appellant operates a coal mine in this state. Appellee's intestate was engaged as a coal miner in its service, and while so engaged was killed by the fall of a large piece of slate or stone from the roof of its mine, where said intestate was engaged at work, and this action was brought to recover damages on account of his death, on the ground that the same was occasioned by the negligence of the appellant. The case was put at issue, a jury trial had, resulting in a general verdict in favor of appellee. Appellant's motion for a new trial was overruled, and judgment rendered on the verdict.

The judgment is sought to be reversed on the ground that the evidence is insufficient to sustain the verdict of the jury. The negligence charged against the appellant in the complaint, as being the proximate cause of the intestate's death, was a failure of appellant to comply with the provisions of the statute requiring operators of mines in this state to see that a sufficient supply of timber is always on hand at every miner's working place to enable the miner to properly support the roof of the mine in the place where the miner is engaged at work.

There are other averments in the complaint, charging a failure on the part of the mining boss to comply with the provisions of the statute requiring him to visit the miner's working place every alternate day, but it does not appear from the allegations of the complaint that such failure of the mining boss to visit the miner's working place had anything to do with the accident resulting in the intestate's death.

It is charged that, had the appellant performed its duty in the matter of keeping constantly on hand at the miner's working place a supply of timber, the intestate would have used the timber to protect himself from the falling of rock from the roof, which caused his death, and these averments constitute the gist of the charge of negligence preferred. Section 12 of the act of February 28, 1905, of Acts 1905, p. 72, c. 50, provides that: “The mine boss shall visit and examine every working place in the mine at least every alternate day, while the miners of such place are or should be at work, and shall examine and see that each and every working place is properly secured by timbers and that the safety of the mine is assured. He shall see that a sufficient supply of timbers are always on hand at the miners' working place.” Section 15 provides that “the operators of any mine shall keep a sufficient supply of timber in the mine, and shall deliver all props, caps and timbers (of proper lengths) to the rooms of the workmen when needed and required, so the employés may, at all times, be able to properly secure the working place from caving in. Every operator operating mines in this state, shall place a blackboard near the main entrance sufficiently large, stating thereon in figures the length of all timbers in use in said mine, and the miners shall register thereon when needing timber for securing their working place, their respective numbers, and under the figure indicating the proper length of the timber required.”

The evidence in this case established the following facts: That appellee's intestate was killed while engaged in the appellant's service as a coal miner, mining coal in one of appellant's mines, and that his death resulted from a large piece of slate or soapstone falling from the roof of the mine upon him; that the accident happened on Tuesday morning, 27th day of March, 1906, about 8 o'clock a.m.; that at the time the accident happened there were no timbers in his room with which the deceased might have supported the roof of the mine in the place where he was engaged at work; that on the Saturday previous he had notified verbally the appelant's mine boss that timbers were needed in his room, and that said mine boss had knowledge and notice that said room and working place was not properly supplied with timbers to support the roof and prevent the mine from caving at the time of the accident and for two days prior thereto; that appellant maintained a blackboard at the entrance to its mine as required by statute, where miners could register their requirementsand needs in regard to timbers, and that appellee's intestate did not register any request for timber on said blackboard; that, on the evening previous to the happening of the accident, the appellee's intestate had fired a blast in the mine, by which the coal in the immediate neighborhood of the...