New Pittsburg Coal & Coke Co. v. Peterson

• Decision Date: 26 March 1896
• Citation: 14 Ind.App. 634,43 N.E. 270
• Court: Indiana Appellate Court
• Parties: NEW PITTSBURG COAL & COKE CO. v. PETERSON.

14 Ind.App. 634

43 N.E. 270

NEW PITTSBURG COAL & COKE CO.

v.PETERSON.

Appellate Court of Indiana.

March 26, 1896.

Appeal from circuit court, Sullivan county; A. G. Cavins, Special Judge.

Action by Elijah B. Peterson against the New Pittsburg Coal & Coke Company. A demurrer to the complaint was overruled, and defendant appeals. Reversed.John S. Bays, for appellant. Rieley & Emison, for appellee.

REINHARD, J.

This is the second appeal in this cause. In the former the judgment was reversed for the insufficiency of the complaint, and error in overruling a demurrer thereto. Coke Co. v. Peterson, 136 Ind. 398, 35 N. E. 7. After the reversal the appellee attempted to amend his complaint so as to conform to the view of the supreme court concerning the requirement necessary to make it sufficient. After the filing of the amended complaint the appellant again demurred. The court overruled the demurrer, and the appellant excepted, and assigns the ruling as error. Formerly the complaint was in four paragraphs. The amended complaint contains but a single paragraph.

It is urged by appellant's counsel that, in the respect in which the original was held defective, the amended complaint is equally so. If this be true, the cause must be reversed; for the ruling on the former appeal is the law of the case, and remains so throughout all subsequent stages. Elliott, App. Proc. § 578. It appears from the averments of the complaint as amended that one Gus Lawrent (called Lawrence in the former appeal) was a foreman in charge of that department of the mine in which appellee was injured while at work for the appellant; that it was Lawrent's duty to employ and discharge the workmen, including the appellee, and to direct them in their work, and also to look after the machinery, and keep the same in repair and running order, and direct when it should run and when remain idle; that appellant had a coke yard, in which there was an elevator, which was composed of two wooden upright shafts, through which two endless chains passed, to which were attached iron brackets passing over sprocket wheels at the bottom and top of said shafts, which wheels, at the bottom of the shafts, were attached to an iron axle, turned by means of a chain belt attached to the engine and axle, and propelled by means of said engine; that appellee was employed to work in said coke yard, in hauling slack, etc., in a wheelbarrow, at $1.25 a day, as a common laborer, and was wholly ignorant of the uses of the machinery therein; that said machine was not under the control of said Lawrent, nor did he have any control over the engine in charge thereof, but that said Lawrent could have easily detached the link belt which moved said elevator from the axle, all of which facts said Lawrent then knew; that on the 19th day of February, 1889, and the night following, it was exceedingly cold, and water carried up in the iron buckets to the top of the elevator froze in said sprocket wheels, so that the elevator could not be used, by reason thereof, and on the morning of the 20th day of February, 1889, said Lawrent, acting for the appellant, ordered the appellee to go with him to the top of said elevator, to remove said ice and slack therefrom, so that appellant could proceed with the business of elevating coal, in which it was engaged; that, by the usual method of conducting appellant's said business, the engine blew a whistle at 7 o'clock each morning as a signal for all of the employés to assemble at the works, and place themselves in readiness for said business, and said engine was thereupon at liberty to be started by the engineer at any moment, which facts said Lawrent knew, but appellee did not know, nor was appellee informed that the engine was at liberty to be started before the hour of 7:30 o'clock a. m., but on the contrary the appellee had been informed by other employés that it did not start before that hour, at which time the engine again blew the whistle; that appellant had in no way informed appellee that the engine would be started before 7:30 o'clock a. m. upon that or any other day; that in obedience to said order of said Lawrent, at the hour of 7 o'clock a. m. on said day, the appellee went with said Lawrent to the top of said elevator, and, by his order and direction, stood with his toes on the bottom of one of said iron buckets so attached to said endless chains, and his heels on the top of the wooden chute just opposite said bucket, and began to chop and remove said ice and frozen slack from said sprocket wheels with a...