Queen Coal & Mining Co. v. Epple

Citation64 Ind.App. 235,113 N.E. 19
Decision Date23 June 1916
Docket NumberNo. 9058.,9058.
PartiesQUEEN COAL & MINING CO. v. EPPLE.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Green County; Theodore E. Slinkard, Judge.

Action by Julius A. Epple, by his next friend, Thomas B. Campbell, against the Queen Coal & Mining Company. Judgment for plaintiff, and defendant appeals. Affirmed.James Bingham, of Indianapolis, for appellant. Chas. E. Henderson, of Indianapolis, for appellee.

FELT, J.

This is an action for damages for personal injuries. The complaint was in four paragraphs, but at the conclusion of the evidence appellee dismissed the fourth paragraph. Issues were joined by general denial. A trial by jury resulted in a verdict for appellee in the sum of $5,000.

The errors assigned and not waived are, in substance, as follows: (1) Overruling appellant's motion for judgment on the answers of the jury to the interrogatories notwithstanding the general verdict; (2) overruling appellant's motion for new trial; (3) overruling appellant's motion to modify and vacate the judgment.

Each paragraph of the complaint alleges, in substance, the relation of master and servant between appellant and appellee, and that appellee was 17 years old at the time of his injury complained of, and received $2.48 per day for his work; that appellant had in its mine an electric pump used to pump water out of the mine; that on this pump there were two cogwheels which meshed, and over which there had originally been constructed a guard which made the place and the machine safe; that the set screw which held the guard in position broke, and the guard came off and remained off for about one week prior to appellee's injury; that the place and the machine were dangerous when the guard was off; that appellant knew of the danger long enough to have replaced the guard before appellee was injured; that it was appellee's duty to clean and oil the machinery, and while doing so in the usual and customary manner by using waste provided by appellant for that purpose the waste which he held in his hand caught in the unguarded cogs, whereby his left hand was drawn into the meshes of the cogwheels and so injured that it was necessary to amputate it at the wrist which was done shortly after the injury was received.

The first paragraph is drawn on the theory of the duly of the master to furnish a safe place for the servant to work and suitable and safe tools and machinery with which to do the work assigned; that appellee was young, ignorant, and inexperienced, and did not know or comprehend the danger of working around said unguarded cogwheels: that appellant knew of the dangers incident to the unguarded cogwheels and of appellee's ignorance and inexperience, and negligently failed and neglected to discharge its duty and to instruct appellee in regard to his work and to warn him of the dangers incident thereto; that it negligently ordered appellee to start the pump and to clean and oil the machinery; that such order was given by appellant's mine boss, who at the time had charge of the ways, works, and machinery of appellant in its mine, and to whose orders appellant was bound to conform and obey; that in obedience to such order he started the pump, and undertook to clean and oil the machinery, and while so doing was injured in the manner aforesaid; that it was the custom in said mine, long known and acquiesced in by appellant, to clean and oil the machinery while in operation.

The second paragraph is substantially like the first, but it also alleges that appellant was notified that the aforesaid guard was off, and that it thereupon promised appellee to replace and repair the same; that appellee relied upon such promise, and at appellant's request continued to work in and about and with said unguarded machinery; that appellant negligently failed to keep its promise to replace said guard, and the machinery remained so unguarded for about one week and until appellee was injured.

The third paragraph contains the same general averments as the first and second, and is based upon the Employers' Liability Act of 1911 (Acts 1911, p. 145; section 8020a et seq., Burns 1914). It alleges that on September 17, 1912, and prior and subsequent thereto, appellant was a corporation under the laws of the state of Indiana and engaged in the business of mining and selling coal; that on said day it employed in its mine more than five men; that it had in its mine the pump and machinery aforesaid; that it was appellant's duty to furnish appellee a reasonably safe place in which to work and reasonably safe machinery and appliances with which to work; that it negligently violated said duty by permitting said guard to remain off and said cogwheels to be and remain unguarded; that by reason of said guard being off said cogwheels and machinery were unsafe, defective, and dangerous; that said cogwheels could have been guarded without in any wise interfering with the free use and operation of said machinery and the purpose the same was intended to serve; that appellant knew of the unguarded cogwheels in time to have replaced the guard and make the place and machinery safe, but negligently failed so to do, and negligently ordered appellee to work with, in, and about the unguarded machinery, and while so doing in obedience to such orders he was injured. The fourth paragraph, which was dismissed, proceeded on the theory of a statutory duty to guard the cogwheels which caused appellee's injury, and a failure so to do.

The answers of the jury to the interrogatories are, in substance, as follows: That prior to the injury appellee had no experience in operating the pump and machinery; that appellee knew the machinery was unguarded before he was injured, and when injured was engaged in cleaning the machinery; that his injury was caused by the absence of the guard and by doing the work while the machinery was in operation; that appellee knew and appreciated that if his hand was caught in the meshes of the cogwheels he would be injured, but did not know and appreciate the danger of placing his left hand so close to the meshes of the cogwheels while in operation that the waste held in his hand would be caught in the cogwheels; that at the time of his injury he did not pay particular attention to ascertain whether the guard was over the wheels or how close the waste in his hand came to the cogs; that it was proper for one of appellee's age and experience, with knowledge of the unguarded cogwheels, to undertake to clean the machinery while in motion; that the machinery could have been as readily cleaned when not running as when in motion; that appellee's father was the mine boss, and he was not ordered to clean the machinery while running; that appellee knew how to start and stop the machinery, and he “was required to clean the machinery in its unguarded condition while it was running”; that the foreman required him to do so; that appellee suggested that the repairs be made, and a promise was made to him by the foreman to repair the guard; that appellee suggested that the guard be repaired to prevent an accident; that appellee did not know and appreciate the danger of operating the machinery with the guard off; that the machinery could have been cleaned with safety while not in operation, but with some inconvenience.

Interrogatory 66 and the answer thereto are as follows:

“If your verdict is for the plaintiff, do you include anything in your verdict for loss of time and earning capacity from the time the plaintiff received his alleged injuries to the time he will become 21 years of age? Ans. Yes.”

[1] Appellant contends that the answers to the interrogatories show conclusively that appellee was guilty of negligence that contributed to his injury, in this: That he knew the guard was off and was experienced in the work he was doing, and could have stopped the pump, and thereby could have cleaned and oiled the machinery in absolute safety. The answers do not support this contention, but are quite conclusive to the contrary. They show that it was proper for one of appellee's age and experience, with knowledge of the unguarded cogwheels, to clean the machinery while in motion; that he was required to do so; that he did not know and appreciate the danger of his work; that he suggested that the guard be repaired, and the foreman promised to have it done. While there is some contradiction in the answers, they fall far short of showing that an ordinarily prudent person of appellee's age and experience in the exercise of ordinary care for his own safety, under the circumstances of this case, would not have undertaken to clean and oil the machinery while in motion as appellee was doing when injured. The court therefore did not err in overruling the motion for judgment on the answers to the interrogatories. Jenny Elec. Co. v. Flannery, 53 Ind. App. 397-408, 98 N. E. 424;Nordyke & Harmon Co. v. Hilborg, 110 N. E. 684;McFarlan Carriage Co. v. Potter, 153 Ind. 107-114, 53 N. E. 465;Lagler v. Roch, 57 Ind. App. 79, 104 N. E. 111-114;National Fire, etc., Co. v. Smith, 55 Ind. App. 124, 99 N. E. 829.

Among the grounds for a new trial appellant alleges:

That the damages are excessive; that “the assessment of the amount of plaintiff's recovery is erroneous, being too large, in that the jury by its verdict included therein loss of time of plaintiff and loss of earning capacity of plaintiff from the time plaintiff received his injuries until he shall become 21 years of age.”

Immediately following the entry of the overruling of appellant's motion for judgment on the answers to the interrogatories the record shows the following:

“And the court now considers the evidence with reference to interrogatory No. 66 and the answer thereto heretofore returned in this cause, and, being fully advised in the premises, now orders the plaintiff to file and enter a remittitur in the sum of $600, and upon plaintiff's refusal to so enter the same within...

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3 cases
  • McCowen v. Short
    • United States
    • Indiana Appellate Court
    • January 30, 1918
    ...and cannot overthrow the general verdict. Farmers' Ins. Ass'n v. Reavis, 163 Ind. 321, 324, 70 N. E. 518, 71 N. E. 905;Queen Coal & Mining Co. v. Epple, 113 N. E. 19-22, and cases cited; Fisher v. L. N. A. & Chicago Ry. Co., 146 Ind. 558-561, 45 N. E. 689. Substantially all of appellants' c......
  • McCowen, Probst, Menaugh Company v. Short
    • United States
    • Indiana Appellate Court
    • January 30, 1918
    ... ... Farmers Ins ... Ass. v. Reavis, supra; ... [118 N.E. 540] ... Queen Coal, etc., Co. v. Epple (1917), 64 ... Ind.App. 235, 113 N.E. 19, 22, ... ...
  • Queen Coal And Mining Company v. Epple
    • United States
    • Indiana Appellate Court
    • June 23, 1916

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