Otter Creek Coal Company v. Archer
| Decision Date | 27 April 1917 |
| Docket Number | 9,262 |
| Citation | 115 N.E. 952,64 Ind.App. 381 |
| Parties | OTTER CREEK COAL COMPANY v. ARCHER |
| Court | Indiana Appellate Court |
From Vigo Superior Court; Fred W. Beal, Judge.
Action by Thomas Archer against the Otter Creek Coal Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
James Bingham and Remster A. Bingham, for appellant.
Charles S. Batt and Walker S. Warner, for appellee.
This was an action for damages for personal injuries received by appellee while employed as a driver in appellant's coal mine. From a judgment in appellee's favor for $ 750 appellant appeals and assigns as error the overruling of its motion for a new trial.
The second paragraph of complaint on which the cause was tried is predicated on the act of 1911. Acts 1911 p. 145, § 8020a et seq. Burns 1914. Appellant answered by general denial.
It appears from the complaint that appellant in the operation of its mine used a wooden track and small coal cars thereon for the purpose of handling and hauling the coal as it was mined. On the day of the injury appellee was employed as a driver and while taking out a carload of coal the car ran off the track about fifteen feet from the face of the coal and this caused the load of coal to pitch forward upon appellee and thereby injure him. The negligence charged in general, is the construction and maintenance of its wooden track in room No. 1 in a dangerous and unsafe condition providing appellee with a defective car, and the negligent loading of the car.
The specific defects charged are that the rails of the tracks were warped and uneven; that they stuck up and were not securely fastened at the ends, causing the cars to run zigzag fashion and greatly increasing the danger of the cars leaving the track; that the track was laid with a high projection about fifteen feet from the face of the coal, which projection was about a foot high and very abrupt and had the effect of throwing a car forward with great force and rapidity when it was pulled over the projection from either direction; that the grade from this projection was very steep; that the car provided by appellant at the time of the injury was defective in that the wheels were worn, warped and cracked, were improperly attached, were loose and that they wobbled back and forth; and that the car was allowed to remain in that condition for a long time prior to the injury. It is also averred that the coal was carelessly and negligently loaded so that it was liable to and did slide forward out of the car.
The questions presented by appellant's brief relate to the giving of, or the refusal to give, certain instructions. Of the instructions given and excepted to, Nos. 2, 3, 4, 6, 7 9, 10, 11, 14, 17, 18, 19, 20, and 23 are discussed. We shall not attempt, however, to set out the instructions in full and will abridge and omit where the specific language used is not essential to render clear our discussion.
The objection to instruction No. 2 necessary to discuss is the use of the words "proximately caused" instead of "proximately contributed" in connection with that part of the instruction referring to contributory negligence on the part of appellee. Appellant contends that the language implies that the contributory negligence shall be the exclusive cause. That part of the instruction reads: "The plaintiff himself is not required to prove that he was not guilty of contributory negligence on his part; but in order to find that the plaintiff was himself guilty of such negligence as would defeat his recovery; the burden is on the defendant to prove by a preponderance of all the evidence in the case, that the plaintiff was himself guilty of such negligence as proximately caused his injury; this, however, can be proved by any of the evidence submitted in the case by plaintiff or defendant."
A proximate cause of a result is not necessarily the sole cause, for we may have concurring causes all of which are proximate. When one of the concurring causes of an injury is the negligence of the plaintiff, we speak of it as contributory negligence. "To constitute 'contributory negligence,' there must be a want of ordinary care on the part of the plaintiff and a proximate connection between that and the injury." Indianapolis, etc., Transit Co. v. Edwards (1905), 36 Ind.App. 202, 74 N.E. 533; See, also, Columbia-Creosoting Co. v. Beard (1909), 44 Ind.App. 310, 89 N.E. 321. The effect of the instruction, when read as a whole, was to tell the jury that, if they found that the defendant was guilty of negligence proximately causing the injury, they should find for the plaintiff, unless the evidence showed that he was guilty of negligence which concurred with that of the defendant in producing the injury. The same objection is made to instruction No. 18, and for like reason it was not erroneous or misleading.
A number of instructions are objected to on the ground that they ignore the provisions of § 8580 Burns 1914, Acts 1905 p. 65, which require appellant to inspect its mine and the miner to give notice of any defect discovered. This action is predicated, as before indicated upon the act of 1911, and not upon § 8580, supra. This we think is a sufficient answer in...
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