S.W. Little Coal Co. v. O'Brien

• Decision Date: 29 June 1916
• Docket Number: No. 9012.,9012.
• Citation: 113 N.E. 465,63 Ind.App. 504
• Parties: S. W. LITTLE COAL CO. v. O'BRIEN.
• Court: Indiana Appellate Court

63 Ind.App. 504

113 N.E. 465

S. W. LITTLE COAL CO.

v.O'BRIEN.

No. 9012.

Appellate Court of Indiana, Division No. 2.

June 29, 1916.

Appeal from Circuit Court, Gibson County; Simon L. Vandeveer, Judge.

Action by Alta O'Brien, as administratrix, against the S. W. Little Coal Company. From a judgment for plaintiff, defendant appeals. Reversed, with instructions.Embree & Embree, of Princeton, for appellant. Samuel E. Dillin and D. D. Corn, both of Petersburg, and T. Morton McDonald, of Princeton, for appellee.

CALDWELL, C. J.

Appellee's complaint, in so far as is necessary to a determination of the questions raised respecting it, is, in substance, as follows: November 23, 1911, appellant was operating a coal mine in Blackburn, Pike county, employing therein 50 men. The mine was located on the line of the Evansville & Indianapolis Railroad Company, which extended north and south, and consisted of a main track and several side or switch tracks, the one involved here being east of the main track. The switch track was used both by appellant and by the railroad company in conducting their respective enterprises. Appellant's tip house was located on the side track, at a point 300 feet south of which appellant maintained its track scale and scale house “theretofore constructed by it at said place, for the purpose of weighing railroad cars loaded with coal as they were moved southward over and upon said switch track.” Appellant in operating its mine brought empty cars down by force of gravity from the north to the tip house, and there loaded them, and thence over such switch track to the scale house to be weighed. William O'Brien, appellee's decedent, was an employé of appellant, and as such it was his duty to weigh the coal as it was loaded on the railroad cars to be shipped, to move loaded and empty railroad cars back and forth whenever necessary on the railroad tracks at the mine; to send props and other material into the mine as needed, and “to do and perform all things and duties necessary to be done in the operation and conduct of said tipple, railroad switch track, cars and track scales at said mine.” The wrongful conduct charged against appellant is to the effect that it negligently constructed, maintained, and operated the scale house so near the switch track that the west side of the former was not more than 2 feet from the east rail of the latter, and that as a consequence railroad coal cars scraped against the side of the former in moving long the switch track, and that such situation was extremely dangerous to employés required to work in and about the scale house, for the reason that they were likely to be caught and crushed between the scale house and passing cars while performing their ordinaryduties. It is charged that “all the foregoing facts were to said defendant well known at all the times herein mentioned.” November 3, 1911, appellant loaded a railroad car with coal at the tipple, and thereafter dropped it southward along the switch track towards the main line. “As said car passed over said track scale, it became and was the duty of plaintiff's decedent to weigh said car of coal; that in order to do so, it was necessary for him to go inside said scale house for that purpose; that at said time said decedent was in the discharge of the duties of his employment, and was on the west side of said switch and south of said scale house; that the door opening into said scale house was on the north side of said scale house at the northwest corner thereof, and next to said switch; that said decedent was compelled to and did cross said switch track in front of said approaching car and to go between said car and said scale house, in order to get within said scale house and weigh said car as it passed over said scale; that said defendant required said decedent to weigh said car while moving, and there was no other practicable or available means of getting into said scale house in time to weigh said car.” It is further alleged that while decedent was attempting to enter the scale house, as aforesaid, he was caught between it and the moving car and crushed and killed. Decedent was 23 years old and left surviving him appellee, his wife, and also an infant daughter. A trial of the cause resulted in a verdict and judgment for $2,000.

Appellant's motion that the complaint be made more specific, by which were challenged as conclusions the allegations which we have placed in italics, was overruled. The allegation that decedent was in the discharge of the duties of his employment on the west side of the track states a conclusion. It is not alleged that he was performing any of the services specifically outlined by the complaint as constituting his duties. Robertson v. Ford, 164 Ind. 538, 74 N. E. 1. The allegation, of itself, however, is not material, since there is no averment that appellant was guilty of any negligence affecting him while in such position. Louisville, etc., R. Co. v. Leaf, 40 Ind. App. 215, 79 N. E. 1066. The allegation becomes material only by reason of other allegations with which it is associated. Thus, if decedent was on the west side of the track for some purpose of his own and independent of his employment, and if the proper discharge of his duties required his presence at the scale house, then while journeying back from serving his own purposes, it could scarcely be said that he was in the discharge of the duties of his employment, and, if injured while outside of the line of his employment, attending to matters of his own, such fact would be important in determining appellant's liability. Brown v. Shirley, etc., Co., 47 Ind. App. 354, 94 N. E. 574.

The allegation that decedent was compelled to cross the track in front of the approaching car and pass between the car and the scale house is also in the nature of a conclusion. A partial clarification consists in the facts alleged respecting decedent's situation and the location of the scale house and the door therein, and that there was no other available or practicable means of getting into the scale house in time to weigh the car. Assuming that decedent was on the west side of the track discharging the duties of his employment, then it sufficiently appears that his duties required him to cross the track and enter the scale house, and that in so doing he was discharging the duties of his employment but the facts alleged do not make clear the necessity of passing in front of the car and attempting to travel the narrow space between it and the scale house. The complaint does not disclose the nature of the compelling force that restrained him from making an earlier start, or that required him to undertake the apparently impossible task of traveling such narrow space.

The complaint was filed after the act of 1913 (Acts 1913, p. 850; section 343a, Burns 1914) went into force. Prior thereto the sufficiency of a pleading depended on the substantive facts alleged and not on the conclusions of the pleader, the latter being disregarded. Frain v. Burgett, 152 Ind. 55;50 N. E. 873, 52 N. E. 395; Robertson v. Ford, supra. By the terms of that act, however, any conclusion stated in any pleading must be considered and held to be equivalent to the allegation of all the facts required to sustain such conclusion, if necessary to the sufficiency of the pleading. The only remedy afforded the opposite party by the act as against any such conclusion, and to ascertain the facts upon which the pleader bases it, is by motion to make more specific. In view of the radical change and its nature made by the act in favor of the pleader, it is our judgment that the corresponding remedy should be liberally applied, where recourse is had to it. We, therefore, hold that the court erred in overruling such motion. Considering the entire record, however, and the apparent fact thereby disclosed that appellant was not prejudiced or placed at a disadvantage by reason of the ruling, we should hesitate to base a reversal thereon. Diamond, etc., Co. v. Cuthbertson, 166 Ind. 290, 296, 16 N. E. 1060;Illinois, etc., Co. v. Cheek, 152 Ind. 663, 53 N. E. 641.

In support of the assignment that the court erred in overruling the demurrer to the complaint, appellant urges two points: First, that facts are not averred in negation of the assumption of risk; second, that the complaint affirmatively discloses that decedent was guilty of contributory negligence. While not expressly conceded, we fail to discover from appellee's brief that any effort is made to meet the second point. Directed to the first point, appellee argues that the complaint is predicated on the act of 1911 (Acts 1911, p. 145; section 8020a et seq., Burns 1914), and that by the terms of that act the defense of assumed risk is eliminated in actions brought under it. Appellant rejoins, in substance, that, conceding that the action is brought under that act, the defense of assumed risk is not entirely abrogated thereby; that section 3 (section 8020c, Burns 1914) of the act, if any part of it, is applicable, and that by the express terms of such section the defense of assumed risk is eliminated only where the defect complained of (quoting from the act) “was prior to such injury known to such employer, or by the exercise of ordinary care might have been known to him in time to have repaired the same, or to have discontinued the use of such defective working place, tool, implement or appliance,” and that the complaint here is insufficient by reason of the absence of an allegation that appellant had such knowledge. Appellant's argument is to the effect that the complaint is not sufficient in its averments to render available the provisions of the act of 1911, by which the defense of assumed risk is eliminated, and hence that the complaint in its relation to such question must be measured by the rules of pleading in vogue in this state in common-law actions, and hence that the complaint, to be sufficient, should have...