Peabody-Alwert Coal Company v. Yandell

• Decision Date: 11 February 1913
• Docket Number: 22,067
• Citation: 100 N.E. 758,179 Ind. 222
• Parties: Peabody-Alwert Coal Company v. Yandell
• Court: Indiana Supreme Court

100 N.E. 758

179 Ind. 222

Peabody-Alwert Coal Company v. Yandell

No. 22,067

Supreme Court of Indiana

February 11, 1913

From Sullivan Circuit Court; Charles E. Henderson, Judge.

Action by Eva Yandell against the Peabody-Alwert Coal Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1399 Burns 1908, Acts 1901 p. 565.)

Affirmed.

John T. and Will H. Hays, for appellant.

John W Lindley and Orion B. Harris, for appellee.

OPINION

Morris, J.

Appellee sued appellant for damages for injuries resulting in the death of her husband, who lost his life in an accident while he was employed by appellant as a coal miner. The action is brought under the coal mining act of 1905 (Acts 1905 p. 65 § 8569 et seq. Burns 1908).

The complaint alleges that decedent's death was caused by appellant's failure, in violation of the provisions of the mining act, to keep on hand sufficient timbers to make decedent's working place safe, and to deliver timbers for such purpose to such place, although the same were necessary therefor; that appellant's mine boss failed to visit and examine his working place, and failed to see that as decedent advanced his excavation, loose coal and slate overhead was removed or secured from falling; that by reason thereof, the roof over decedent's working place became loose and dangerous, and fell and caused his death; that appellant had knowledge of such condition a sufficient time before the injury, to have remedied the same and thereby have avoided the accident. The court overruled appellant's demurrer to the complaint. This ruling is here assigned as error. There was a trial by jury, verdict and judgment for plaintiff. Appellant's motion for a new trial was overruled, and this action is also assigned as error.

Appellant contends that the complaint is insufficient because it fails to aver facts showing that decedent registered on the blackboard a request for props and timbers, as provided in § 15 of the act (Acts 1905 p. 65, § 8585 Burns 1908). In Muren Coal, etc., Co. v. Copeland (1910), 46 Ind.App. 230, 234, 90 N.E. 489, 91 N.E. 508, it was said: "The statute expressly imposes on the operator the duty of seeing to it that the miner's working place is supplied with the timbers which he may need from time to time, as the work progresses, to make his working place entirely secure. The provision with reference to the blackboard was designed evidently as one of the means of keeping the mining boss informed of the necessity for timbers. The law requires the mining boss to visit the mine every alternate day. This provision of the law is very evidently intended in part for the same purpose. But with the fact conceded that the mining boss, who for this purpose represents the operator, has knowledge of the fact that the necessary timbers are not supplied in the miner's working place, the duty to supply them imperatively follows." There was a petition to transfer the above cause to this court, and it was denied. We are of the opinion that the complaint is not rendered insufficient because of the reason urged.

It is most earnestly insisted by appellant's counsel that the complaint is bad for failure to aver that it was practicable to do the things omitted, without undue interference with the workings of the mine; that the mining act is penal, and must be strictly construed. On the latter question this court said in Princeton Coal, etc., Co. v. Lawrence (1911), 176 Ind. 469, 477, 95 N.E. 423, 96 N.E. 387: "While it is a penal statute, it is also remedial, and should not receive so strict a construction as to destroy the very object of its enactment." In Vandalia Coal Co. v. Yemm (1911), 175 Ind. 524, 531, 92 N.E. 49, 94 N.E. 881, it was said concerning the legislative intent of the act: "The history of this character of legislation, beginning with 1885 (Acts 1885, supra), enlarged in 1891 (Acts 1891, supra), and again in 1905 (Acts 1905, supra), discloses an increasing interest in legislation for the safety of the lives and limbs, and the preservation of the health of the miners." In Antioch Coal Co. v. Rockey (1907), 169 Ind. 247, 254, 82 N.E. 76, this court declared: "Certainly, then, if for any reason it becomes impracticable to secure loose coal, slate or rocks overhead in the working place in the mine by means of timbers or props, such loose coal, slate or rock should be removed before the miners are permitted to resume work." (Italics ours.)

Appellant especially relies on Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N.E. 277, which held that in a complaint under the factory act for failure to guard a machine, that it was necessary to allege it was possible to guard the particular machine without rendering it useless for purposes of operation. The above doctrine is not applicable here. When the factory act was passed, it is well known that there was machinery impossible to operate when so guarded as to avoid all danger. The use of such machinery was not prohibited (Acts 1899 p. 231, § 8029 Burns 1908).

The several mining acts, in unmistakable terms declare that the mine boss shall see that every working place is properly secured by timbering, and that a sufficient supply of timbers is always on hand at the miner's working place, and that when an unsafe place is reported to him no one shall enter the place except for the purpose of making it safe. § 8580 Burns 1908, Acts 1905 p. 65, § 12. Under such conditions it was not contemplated by the act that the ordinary mine work should continue in the dangerous place, but on the contrary that it should cease until the place should have been made safe.

Courts must give full effect to the legislative intent, unless restrained by the organic law. Where the intent is clear, there is nothing to construe. Rules of construction, whether strict or liberal, or of whatever character, may be applied only where the intent of the statute is equivocal or obscure. The decedent here, as alleged in the complaint, was employed as a coal loader, and not to make working places safe. While appellant's contention that the complaint should properly have averred that it was practicable to have done the alleged omitted things without interfering with the working of the mine, is supported in the case of Zeller-McClellan & Co. v. Vinardi (1908), 42 Ind.App. 232, 85 N.E. 378, we think the court in that case, was in error in applying the same rule to the mining act as was applied in Laporte Carriage Co. v. Sullender, supra, to the factory act. There was no petition filed to transfer the Vinardi case to this court. The court did not err in overruling the demurrer to the complaint.

Appellant insists the court erred in instructions Nos. 1, 4, 16 and 17 given on its own motion, because from each was omitted the element of wilfulness. There was no error. The right to recover under the act, may be based on the inadvertent failure to comply with its provisions, as well...