Rogers v. Leyden

• Decision Date: 17 January 1891
• Docket Number: 14,570
• Citation: 26 N.E. 210,127 Ind. 50
• Parties: Rogers et al. v. Leyden
• Court: Indiana Supreme Court

26 N.E. 210

127 Ind. 50

Rogers et al. v. Leyden

No. 14,570

Supreme Court of Indiana

January 17, 1891

From the Gibson Circuit Court.

Judgment affirmed.

J. W Ogdon, M. F. Burke, W. Hefferman and C. A. Buskirk, for appellants.

J. H Miller, J. E. McCullough, E. P. Richardson and A. H. Taylor for appellee.

OPINION

Elliott, J.

The appellants were the owners of a coal mine and the appellee was one of their employees, engaged in mining coal. While engaged in the line of his service, and performing a duty assigned him by his employers, he was injured by the fall of an overhanging part of the roof of the mine. There is evidence tending to prove that the employers knew of the unsafe condition of the mine, and that they had been requested to make it safe, but negligently failed to take steps to make the mine safe or to avert the threatened danger.

It is established law that an employer is bound to use ordinary care and skill to make and keep the place where his employees are required to work in a reasonably safe condition. Louisville, etc., R. W. Co. v. Corps, 124 Ind. 427, 24 N.E. 1046; Taylor v. Evansville, etc., R. R. Co., 121 Ind. 124, 22 N.E. 876; Cincinnati, etc., R. W. Co. v. Lang, 118 Ind. 579, 21 N.E. 317; Brazil, etc., Co. v. Young, 117 Ind. 520, 20 N.E. 423; Louisville, etc., R. W. Co. v. Sandford, 117 Ind. 265, 19 N.E. 770; Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439, 20 N.E. 287; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N.E. 380; Indiana Car Co. v. Parker, 100 Ind. 181; Cunningham v. Union Pac. R. W. Co., 4 Utah 206, 7 P. 795; Consolidated Coal Co. v. Wombacher (Ill.), 134 Ill. 57, 24 N.E. 627; Johnson v. Spear, 76 Mich. 139 (15 Am. St. Rep. 298, 42 N.W. 1092).

It is, however, equally well established that an employee assumes all the risks incident to the service into which he enters. Louisville, etc., R. W. Co. v. Sandford, supra; Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20 (5 Am. St. Rep. 578, 14 N.E. 721).

But where the negligent breach of duty on the part of the employer augments the hazards of the service, the employee may, unless by voluntarily continuing in the employer's service he has assumed such danger, hold the employer accountable for an injury caused by such negligent breach of duty. It is the risk of ordinary perils incident to the service that the employee assumes, not the hazard of extraordinary risks added by the failure of the employer to perform the duty enjoined upon him by law. An employer who assigns an employee to work in a particular place, or directs him to perform a special duty, must use reasonable care and skill to make it reasonably safe for the employee to perform the duty assigned to him. Cincinnati, etc., R. W. Co. v. Lang, supra, and authorities cited. In deciding a case somewhat similar to the present, the Court of Appeals said: "When the master ordered the intestate to perform his work as a machinist in the trenches opened and prepared for him, he had a right to assume that the place had been made reasonably safe by the master through other and competent servants employed by him." Kranz v. Long Island R. R. Co., 123 N.Y. 1, 25 N.E. 206. Many of the instructions given by the trial court substantially embody the principles we have stated, and so far as they do this there is, of course, nothing in them of which the appellants can justly complain.

If it were conceded that the "mine boss" was the fellow-servant of the appellee, and not the representative of the employer, still his negligence would not absolve the employer, although it may have concurred with the negligence of the latter in producing the injury. Where the master is negligent he is responsible, although the negligence of a fellow servant may have concurred in bringing injury upon the plaintiff. An employer must answer for his own breach of duty to his employees, even though one of his employees was also guilty of negligence which contributed to the wrong done to the injured employee. Cincinnati, etc., R. W. Co. v. Lang, supra; Coppins v. New York Central R. R. Co., 122 N.Y. 557, 25 N.E. 915; Franklin v. Winona, etc., R. R. Co., 37 Minn. 409 (5 Am. St. R. 856, 34 N.W. 898); Faren v. Sellers, 39 La. Ann. 1011 (4 Am. St. R. 256, 3 So. 363); Cayzer v. Taylor, 10 Gray, 274 (69 Am. Dec. 317); Paulmier v. Erie R. R. Co., 34 N.J.L. 151; Booth v. Boston, etc., R. R. Co., 73 N.Y. 38 (29 Am. R. 97); Myers v. Hudson Iron Co., 150 Mass. 125 (15 Am. St. R. 176, 22 N.E. 631.)

This rule rests on solid principle. It is no more than bare justice to compel a wrong-doer to answer for the proximate consequences of his own negligence, and it would be to the last degree unjust to permit him to escape responsibility upon the ground that some one else was also guilty of culpable negligence. The law can not be reproached with such injustice as is involved in the assertion that a wrong-doing employer may shelter himself behind the act of one of his employees who, like himself, has been guilty of an actionable wrong.

The essential part of the fourth instruction given by the trial court reads thus: "The fact, if it is a fact, that Leyden had knowledge that the roof was in a dangerous condition does not necessarily preclude a recovery by the plaintiff. Knowledge is always an important matter for consideration, but it does not always establish contributory negligence. If one undertakes to pass a known danger so great that no person of ordinary prudence would voluntarily encounter it, then he is guilty of contributory negligence, for no person possessing knowledge of danger has a right to go into a place which ordinarily prudent men would avoid. If, however, the danger is known, but it is not of such a character as that prudent men would not decline to encounter it, then the attempt to pass it is not, in and of itself, such negligence as will defeat the action. But if he does attempt to pass it, he must exercise care proportioned to the known danger." In the proper case, or as properly restricted to the single question of contributory negligence, there would be no difficulty in sustaining this instruction. Ohio, etc., R. W. Co. v. Trowbridge, 126 Ind. 391, 26 N.E. 64, and cases cited. We do not doubt that it correctly expresses the law as applied to a case where the question is one of contributory negligence, but here the question is not exclusively one of that character, for a material question is whether the appellee, having knowledge of the danger, assumed it as one of the risks incident to his service. The law upon this point is well settled, for it has often been held that where the danger is known, although it is attributable to a breach of duty on the part of the employee, the employee assumes it as one of the risks of his service if he voluntarily remains in the employer's service after he has acquired a knowledge of the danger. Louisville, etc., R. W. Co. v. Corps, supra; Louisville, etc., R. W. Co. v. Sandford, supra; Brazil, etc., Co. v. Young, supra; Indianapolis, etc., R. W. Co. v. Watson, supra; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1, 8 N.E. 630; Philadelphia, etc., R. R. Co. v. Hughes, 119 Pa. 301, 13 A. 286; Wilson v. Winona, etc., R. R. Co., 37 Minn. 326, 33 N.W. 908; Gaffney v. New York, etc., R. R. Co., 15 R.I. 456, 7 A. 284. An exception to the general rule exists, but exists only where the employer promises to take measures to remove the danger. Indianapolis, etc., R. W. Co. v. Watson, supra.

It may, perhaps, be true that if the instruction stood alone we should be compelled to reverse the judgment, inasmuch as it does, in itself, and considered apart from the other instructions, probably attribute an improper effect to the element of knowledge on the part of the employee, in that it treats his knowledge as affecting only the question of contributory negligence, whereas the element of knowledge may have a different effect, and may control a different question. The question which the element of knowledge often controls, as is evident from what we have said, is the question whether the danger known to the employee became, by his voluntary continuance in his employer's service, one of the risks assumed by him as an incident of his service. In other instructions, however, the effect of knowledge on the part of the employee is fully and clearly stated, and we are not prepared to hold that the single instruction misled the jury. The instruction is, in part at least, directed to the question of contributory negligence, and contributory negligence is an element of such cases as this; so that although it is perhaps true that the language used in the instruction is too broad, still, we can not say that the instruction when read, as it must be, in connection with the other instructions, carried the jury astray. It appears, moreover, from the answers to interrogatories that the appellee did not have knowledge of the increased peril due to his employer's breach of duty; hence, it is evident that the jury could not have been misled. It is a familiar rule that an appellant must affirmatively show two things: an erroneous ruling, and that harm resulted from it. Perkins v. Hayward, 124 Ind. 445, 24 N.E. 1033. We can not, in the condition of the record, reverse the judgment because of the defect in the instruction in question, for we can not decide that it affirmatively appears that there was material error prejudicial to the appellant. Considering the element of contributory negligence to which the instruction refers, and considering, also, the other instructions, and the answers to interrogatories, we have no doubt that it is our duty to affirm that there was no such error as warrants a reversal of the judgment.

The rule that...