Peterson v. New Pittsburg Coal & Coke Co.

• Decision Date: 07 January 1898
• Citation: 49 N.E. 8,149 Ind. 260
• Parties: PETERSON v. NEW PITTSBURG COAL & COKE CO.
• Court: Indiana Supreme Court

149 Ind. 260

49 N.E. 8

PETERSON

v.NEW PITTSBURG COAL & COKE CO.

Supreme Court of Indiana.

Jan. 7, 1898.

Appeal from circuit court, Sullivan county; William W. Moffett, Judge.

Action by Elisha B. Peterson against the New Pittsburg Coal & Coke Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Geo. G. Reily, for appellant. John J. Bays, for appellee.

HACKNEY, J.

This is the third appeal of this case. See Coke Co. v. Peterson, 136 Ind. 398, 35 N. E. 7;Id., 14 Ind. App. 634, 43 N. E. 270. The lower court sustained the appellee's demurrer to each of the two paragraphs of amended complaint, and that ruling is here assigned as error. The sufficiency of the first paragraph, only, has been discussed by appellant's counsel, and will alone be considered. The facts alleged disclose that the appellant, an employé of the appellee, was engaged in cutting ice from the sprocket wheels of a coke elevator, that in doing so his feet rested partly upon one of the elevator buckets, and that while so engaged the machinery propelling the elevator was started, and he was thereby thrown upon the buckets, and against other parts of the elevator, and seriously injured. The company conducted its business, of mining, farming, merchandising, and operating coke ovens, through a general superintendent, who selected a foreman, with power to employ, direct, and discharge servants, for each of the departments of said business. At the time of appellant's injury he was acting pursuant to directions from the foreman of the coke department, who was assisting in the work of removing the ice from the elevator. In the two former appeals it was held that the foreman was a fellow servant, and not a vice principal; and nothing is alleged in the complaint, as again presented to us, which would give any other character to the service of the foreman at the time. An effort was made, however, to take the case out of the fellow-servant rule by allegations that the superintendent and foreman were each unfit for the service in which they were engaged, by reason of their ignorance, respectively, of the duties of the positions in which the company employed them. Several delinquencies in duty were alleged against the foreman and the superintendent, such as the failure of the latter to be present at times, his omission to give particular instructions, by rule or otherwise, as to the time of starting the machinery, and the failure to instruct the appellant as to the dangers of appellee's machinery, and the failure of the former to see that the belt connecting the power with the elevator was thrown off during the work, or to see that the power was not applied, and in placing appellant in a place of danger. The pleading is meager and doubtful, if not deficient, in allegations disclosing that any of such alleged delinquencies were the proximate cause of the...