Neutz v. Jackson Hill Coal and Coke Company
| Decision Date | 09 October 1894 |
| Docket Number | 16,861 |
| Citation | 38 N.E. 324,139 Ind. 411 |
| Parties | Neutz v. Jackson Hill Coal and Coke Company |
| Court | Indiana Supreme Court |
Reported at: 139 Ind. 411 at 418.
From the Sullivan Circuit Court.
The judgment is affirmed.
W. C Hultz, W. R. Nesbit, J. T. Beasley, A. B. Williams, B. K Elliott, W. F. Elliott and G. W. Buff, for appellant.
J. S Bays, S. O. Pickens, S. N. Chambers and C. W. Moores, for appellee.
The questions presented by the record in this case arise upon the action of the trial court in rendering judgment for the appellee upon the special verdict of the jury. By said verdict the jury found that the appellee was engaged in mining and shipping coal, and for its convenience in said business it had constructed a switch or short line of railway from the Evansville and Terre Haute Railway to and for a short distance beyond its mines. The grade of said line from said mine outward was so inclined that when cars were placed upon it, beyond the mines, they would, by their own weight, run back to the mines when not restrained by brakes or other obstruction. At the mines the appellee had erected a shed and "tipple" or dumping machinery on the line of said switch in such manner as to extend out over the track and from which cars were loaded with coal from the mines.
On the 14th and 15th days of May, 1891, the appellee procured several cars to be run in upon said switch beyond the mines, four of which cars had either badly worn or broken brakes, or had none to hold them in place and prevent their return down the track to the mines, and that up to the morning of the 16th day of May they were held back by another car. Prior to said 15th day of May the appellant had been in the employ of the appellee, his work consisting of digging, cutting and shoveling under ground in the mine. On that day he was required to assist in loading cars from said coal shed, and said work was continued into the 16th day of the month. Said work, it is found, was more dangerous than that he had previously done; "that on the 16th day of May, 1891, and for some time prior thereto, the defendant had duly authorized and employed George Prudo and Elisha Burress, agents and servants of defendant, to move cars standing on said branch railroad or switch, beyond said mine, to a point near to said 'tipple' where they were to be taken and loaded with coal; and during said time the said Prudo and Burress were duly and legally employed by defendant to examine, investigate, inspect, and test the brakes on said cars so as to see that said cars could be let down said branch railroad or switch to said point near said 'tipple', in safety, and to secure and safely fasten all cars standing on said branch railroad or switch, so that the work around and under said 'tipple' could be carried on in safety; that said Prudo and Burress, on said 16th day of May, 1891, had no control over the plaintiff or his work, nor had the plaintiff any control over said Prudo and Burress, or their said work on said day; that on said 16th day of May, 1891, * * while plaintiff was in said car in pursuance of his said work, under the directions of the defendant, as aforesaid, the said George Prudo and Elisha Burress went to where said cars were situated on said branch railroad or switch, as aforesaid, a distance of one hundred yards from where said plaintiff was at work, for the purpose of letting one of said cars down said switch to a point near where plaintiff was at work, so that it should be loaded with coal; that said Prudo and Burress failed to properly and carefully investigate, inspect or test the condition of the brakes on said cars; that if said Prudo and Burress, or either of them, had properly and carefully inspected or tested said brakes, they could easily have seen and known that the brakes on the two cars next behind the one to be let down to the 'tipple' were worn out and useless, and that there were no brakes at all on said box car, and that said cars would not stand on said inclined branch railroad or switch when said front car was removed from them down said switch"; that said defective cars could have been detained where they had been standing by placing a chock under their wheels, to have done which was suggested by ordinary care and prudence; that said first car was permitted by said Prudo and Burress to run down the switch without securing said other cars when, without appellant's fault or negligence, said other cars followed at a high rate of speed, striking said first car and driving it into collision with that upon which the appellant was engaged, thereby throwing him from said car and inflicting the injuries complained of.
Other facts are found excusing the appellant from contributory fault.
The special verdict, upon the argument of the parties, presents but two questions: Did the greater dangers of loading cars, over those of working down in the mines, enhance the appellant's right of recovery? and was the negligence of noninspection, which unquestionably occasioned the injury, the negligence of fellow servants or of vice-principals?
Upon the issues there was no question presented as to the extra hazards of the service in which the appellant was injured, and that finding by the jury must be disregarded. Brown v. Will, 103 Ind. 71, 2 N.E. 283; Thomas v. Dale, 86 Ind. 435; Town of Cicero v. Clifford, 53 Ind. 191; Boardman v. Griffin, 52 Ind. 101; Hasselman v. Carroll, 102 Ind. 153; Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275, 24 N.E. 981.
The finding, however, is not that such hazards were greater than the appellant had contracted to perform but simply that they were greater than those of the service he had been performing. If, therefore, the question had been in issue it is probable that the finding would have been insufficient, since extra hazards are necessarily those not contemplated by the contract of employment.
The second question is not entirely free from embarrassment, and requires careful discrimination. The appellant insists that the duty of the master to provide for the servant...
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