New Pittsburgh Coal & Coke Co. v. Peterson

• Decision Date: 31 October 1893
• Citation: 35 N.E. 7,136 Ind. 398
• Parties: NEW PITTSBURGH COAL & COKE CO. v. PETERSON.
• Court: Indiana Supreme Court

136 Ind. 398

35 N.E. 7

NEW PITTSBURGH COAL & COKE CO.

v.PETERSON.¹

Supreme Court of Indiana.

Oct. 31, 1893.

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

Action by Elijah B. Peterson against the New Pittsburgh Coal & Coke Company. Judgment for plaintiff. Defendant appeals. Reversed.

John S. Bays, for appellant. W. C. Hultz and Geo. G. Riley, for appellee.

HACKNEY, J.

The appellee sued the appellant in the court below for personal injuries, and recovered judgment for $5,000. His complaint was in four paragraphs, the first of which was, in substance, as follows: The appellant was employed to do general work in and about the appellee's coke yards, and to haul away ashes and other refuse, haul slack, and clean the yards, from July 30, 1888, to and including February 19, 1889; that he was inexperienced in working with machinery, as the defendant well knew; that on said last-named day one Gus. Lawrence was defendant's agent to employ and discharge its workmen, including the plaintiff, and to control their work; that said Lawrence negligently directed the plaintiff to clean certain of defendant's slack elevators, and the place of performing such work was dangerous, in that it became necessary to stand close to the machinery of the elevators and upon the buckets thereof, and that, if the machinery was put in motion while he was so occupied, injury was sure to follow, of which dangers said defendant well knew; that plaintiff entered upon the work so assigned, in the presence and under the direction of said Lawrence, and “reposed confidence in the prudence and caution of the defendant, and that defendant would notify him of the starting of the machinery, so that he could remove” from its dangers; that while so engaged, and without notice or warning, the defendant negligently put the machinery in motion, whereby plaintiff, without fault or negligence on his part, was drawn into the guide of the elevator belt and buckets, and sustained the injuries complained of. The second paragraph varies from the first only in alleging that the plaintiff's employment was special, in that it was to haul slack, clean the yard, and haul ashes and other refuse, and that he was inexperienced and unacquainted with the use of said machinery, and ignorant of the dangerous character of the work. The third paragraph is in effect the same as the second, excepting that it alleges that the plaintiff was directed to perform said service near the time for starting the machinery in motion, and that the defendant knew, or by ordinary care could have known, of the nearness of the time for starting said machinery, and that it would start while plaintiff was so engaged, and of his dangerous situation. The fourth paragraph differs from the first only in alleging, in addition to the facts contained in the first, “that the place furnished the plaintiff to work in was not a safe place, but was extremely dangerous, in this: that death or great bodily harm was sure to result to one who occupied the place so assigned the plaintiff, when the machinery was in motion,” and “that plaintiff did not know of the proximity of the time for starting said machinery.” This paragraph, however, does not allege negligence in the starting of the machinery, or that it was started by the defendant or its servants.

In considering the sufficiency of this complaint it is essential that we keep in view the theory upon which it proceeds; in other words, the duty of the master, for the violation of which a recovery is claimed. The master is not charged with supplying improper, imperfect, or unusual machinery for the purposes in which it engaged the servants operating the mill; nor is it alleged that there was any negligence in employing or retaining in the service ignorant, unskilled, or habitually negligent servants; nor is it an element of the cause of action that the master failed to adopt proper rules for the government of its servants, nor that the machinery was started in violation of such rules as to the time or manner thereof. The necessary conclusion is that the injury complained of was the result of negligence in not delaying the starting of the machinery while Peterson was in the elevator. We are not to presume that the engineer knew of Peterson's situation when he started the machinery, nor can we presume that he started the machinery at an unusual time. More briefly stated, it is not for us to presume that the engineer acted willfully or negligently. The only negligence charged is that of Lawrence. If he was a fellow servant of Peterson, and not a vice principal, all of the paragraphs of complaint were bad. The allegation of Lawrence's relation to the master, as we find it in every paragraph, was that one Gus. Lawrence was defendant's agent, with full authority “to control the work of and to employ and discharge the plaintiff from his employment, as well as other servants of said defendant.” Whether Lawrence was a vice principal in performing the service in which his negligence caused the appellee's injury must be determined from this allegation, in the light of the authorities. But for this allegation it clearly appears that the appellee and Lawrence were serving the same common master, and were engaged in the same common pursuit, in accomplishing the same common object, and were therefore fellow servants. The questions of rank and of power to employ and discharge servants are not controlling in the consideration of the relation of Lawrence to the appellant. Justice v. Pennsylvania Co., 130 Ind. 321, 30 N. E. Rep. 303. As there said, in effect, the controlling consideration is whether the act or omission is one arising from a duty owing by the master to the servant, the discharge of which duty is intrusted by the master to the negligent servant. In Coal Co. v. Cain, 98 Ind. 282, the complaint alleged that Hopkins was the master's “bank boss, and as such had charge of its coal mine and control of the men working therein; and it was his duty to look after, care for, and superintend said mine and the entire workings therein, and to secure...