Oolitic Stone Company of Indiana v. Ridge

• Decision Date: 24 May 1910
• Docket Number: 21,387
• Citation: 91 N.E. 944,174 Ind. 558
• Parties: Oolitic Stone Company of Indiana v. Ridge
• Court: Indiana Supreme Court

91 N.E. 944

174 Ind. 558

Oolitic Stone Company of Indiana v. Ridge

No. 21,387

Supreme Court of Indiana

May 24, 1910

Rehearing Denied October 11, 1910.

From Morgan Circuit Court; Joseph W. Williams, Judge.

Action by Andrew J. Ridge against the Oolitic Stone Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Elmer E. Stevenson, Duncan & Batman, George W. Grubbs and W. H Martin, for appellant.

John A Riddle, David E. Watson and H. E. McGinnis, for appellee.

OPINION

Jordan, J.

Appellee, while in the service of appellant, on March 19, 1901, sustained the personal injuries of which he complains, due to the alleged negligence of appellant. The original complaint in this action was in two paragraphs and was filed in the Monroe Circuit Court on January 29, 1902. Subsequently, the cause was venued to the Morgan Circuit Court, where the amended complaint, upon which the judgment here involved was recovered, was filed on March 12, 1908. This latter complaint by its averments discloses, among others, the following facts: That defendant was, on March 19, 1901, a corporation engaged in the business of operating a stone-quarry in Monroe county, Indiana; that on said day and prior thereto plaintiff was in the employ of defendant as its servant, employed by defendant company as a shoveler at the wages of $ 1.25 a day; that the sole duties of plaintiff under his said employment as shoveler, for which he was hired and which he agreed to perform, was to shovel mud and loose dirt from the floor of defendant's quarry, and to pick up stones and spalls and remove them from the floor of said quarry; that on the day heretofore mentioned this plaintiff was in the service of said defendant, engaged as such shoveler in shoveling mud and loose dirt and in picking up and removing stones and spalls from the floor of said quarry, and while he was so engaged said defendant at the same time was engaged in quarrying a large stone about thirty feet long, seven feet thick and five feet wide, extending north and south in said quarry, and said stone had been cut loose by defendant company from the main wall on the east side of said quarry, and the north end thereof, by means of certain channeling machines operated by defendant's employes, and turned over toward the west side, leaving a space of about five feet between said stone so turned over and the wall on the east side and north end of said quarry, from which it had been cut loose; that there remained under and behind said stone and east of it, after it had been so turned over to the west, certain slips, wedges and tools with which it had been broken loose from the floor of said quarry; that plaintiff had nothing whatever to do with managing, running or operating said channeling machine or the slips, wedges and tools connected with and used in quarrying said stone as aforesaid, nor had he any right, power or authority to give any orders or directions in reference to running, managing or operating said channeling machines, or in the use of said slips, wedges or tools, but that he was hired, employed and engaged to perform only the duties of a shoveler or mudder; that on said day said defendant, by Peter Deckard, who at said time was engaged in the service of defendant and was acting in the capacity of ledge boss for defendant in said quarry, and who had full control of all men in and about said quarry, including this plaintiff, and with full power to discharge and employ men, ordered, directed, required and compelled this plaintiff, while he was so engaged in removing mud, loose dirt, stones and spalls from the floor of said quarry, shortly after said stone had been turned over as aforesaid, to quit his said work of removing dirt and spalls from the floor of said quarry and to go around the south end of and behind said stone and into the open space between it and the wall on the east side and north end of said quarry, and remove said slips, wedges and tools from under and behind said stone, such employment and services being then and there wholly different from and outside of the service he was employed to perform, and more hazardous than the work he had been employed to do and had agreed to perform; that pursuant to and by reason of said order plaintiff did quit his said work as such shoveler, went into said space, as ordered, and began picking up said slips, wedges and tools as ordered and directed by defendant's said boss; that by reason of the fact that the plaintiff was employed as such shoveler, and was so ordered and directed by defendant's ledge boss, Peter Deckard, to quit his said work as shoveler, and to go around the south end and behind said stone and into the open space between it and the wall on the east side and north end of said quarry and remove said slips, wedges and tools from under and behind said stone, it became and was the duty of said defendant, through its said ledge boss, to see that the ledge on the east side and north end of said quarry, from which said stone had been cut loose, and the place where plaintiff was so ordered to pick up said slips, wedges and tools, was reasonably safe for this plaintiff to work in and about, and to see that said wall was carefully secured by natural or artificial support, or taken down and made free from the danger of falling, and reasonably safe for this plaintiff to work near in complying with the order of defendant's said ledge boss, and to inspect it before ordering plaintiff to go to such place or about said ledge or wall, and to see that it was reasonably safe for plaintiff to work in and about in complying with his said orders, and free from danger of falling upon plaintiff while he was obeying said order; that defendant, through its said ledge boss, did not perform its said duty in that behalf, but carelessly and negligently failed to see that the ledge or wall on the east side and north end of said quarry, from which said stone had been cut loose, and the place where plaintiff was so ordered to pick up said slips, wedges and tools, was reasonably safe for this plaintiff to work in and about in complying with and obeying said order, and carelessly and negligently failed to see that said ledge or wall was carefully secured by natural or artificial supports, or taken down and made free from danger of falling upon this plaintiff while he was so complying with said order of defendant's said ledge boss; that said defendant by its said ledge boss carelessly and negligently failed to inspect said east wall of said quarry and the north end of it from which said stone had been so quarried, before ordering this plaintiff to go into such place, so that by reason thereof, on said day, while plaintiff was engaged in picking up said slips, wedges and tools, in obedience to said order of said Peter Deckard, and immediately after plaintiff had left his said work as a shoveler, had gone behind said stone, pursuant to said order, and while about to remove said slips, wedges and tools, in obedience to the orders and directions of said ledge boss, Peter Deckard, and while exercising due and proper care and diligence, and without any fault or negligence on plaintiff's part, several tons of clay, dirt, mud and rock, or original deposit, which had been left unsupported, by reason of the removal of said large stones, fell from said ledge of said quarry, and, without warning to the plaintiff, fell upon and against him with great weight and force, covering him to the depth of four or five feet and crushed and bruised him about his back, shoulders, head, breast and abdomen, breaking three of his ribs and one of his legs, crushing his skull and forcing a sharp piece of rock under his chin, up through his mouth and tongue and into the roof of his mouth, and otherwise greatly bruising, cutting, lacerating and wounding him, thereby permanently disabling and injuring said plaintiff.

The complaint further shows that the wall left by the excavation of said large stone was left unsupported and unsafe, and was liable to fall upon the plaintiff at the time he was engaged in the work of picking up said wedges and tools in complying with the orders and directions of defendant's said ledge boss, Peter Deckard. All of which it is alleged was known to the defendant company and said Deckard at and before the time of said injury, and by the exercise of reasonable care could have been known.

It is further averred that said defendant and said Peter Deckard carelessly and negligently failed to make any inspection whatever of said wall or ledge and the north end of said quarry, either before or after said stone had been taken out of said place and turned over toward the west, in order to inform themselves whether said wall was in danger of falling but left it in a dangerous condition, without sufficient natural or artificial support to sustain it, so that the bank of dirt, mud and stone so left by the removal of said large rock was in great and immediate danger of caving in and falling, and did cave in and fall upon plaintiff, as aforesaid; that the plaintiff was unacquainted with the condition of said bank or wall of said stone-quarry at the place he was so ordered and directed to pick up said slips, wedges and tools, and where he was injured as heretofore set out, and had nothing whatever to do with the quarrying of said stone, and did not see, and could not by the exercise of reasonable care have seen and observed, the peril and danger which he was in at the time he was picking up said slips, wedges and tools in the open space under said stone, while complying with said order of defendant's ledge boss, and had no knowledge whatever that said wall was loose, weak or dangerous, or liable to fall; that the wall on the east side and north end of said ...