The Brazil Block Coal Company v. Gibson
| Decision Date | 20 March 1903 |
| Docket Number | 20,014 |
| Citation | 66 N.E. 882,160 Ind. 319 |
| Parties | The Brazil Block Coal Company v. Gibson |
| Court | Indiana Supreme Court |
From Clay Circuit Court; P. O. Colliver, Judge.
Action by James Gibson against the Brazil Block Coal Company for personal injuries. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Affirmed.
G. A Knight, for appellant.
J. M Rawley, T. W. Hutchison, A. W. Knight, S.D. Coffey and S. M McGregor, for appellee.
This was an action brought by appellee to recover damages for personal injuries. The complaint was in three paragraphs. Appellant's demurrer to each paragraph for want of facts was overruled as to the first and third paragraphs, and sustained as to the second paragraph. The third paragraph was withdrawn by the appellee at the trial. The appellant filed a general denial. A trial of the cause by a jury resulted in a verdict in favor of appellee, on which the court, over appellant's motion for a new trial, rendered judgment for appellee.
The errors assigned and not waived are: (1) That the court erred in overruling the demurrer to the first paragraph of the complaint; and (2) that the court erred in overruling the motion for a new trial.
The first paragraph of the complaint alleges that appellant is a domestic corporation engaged in the business of mining coal in the counties of Clay and Parke, in this State; that on the 13th day of September, 1900, and for two or three months prior thereto, appellant, in prosecuting its business of mining coal, was engaged in sinking a shaft near the town of Caseyville, Parke county, Indiana; that said shaft was being formed by making a vertical excavation, and hoisting the accumulated earth to the surface; that on the foregoing date the work of excavating had proceeded to such an extent that the shaft was about eighty-six feet deep; that the loose earth that accumulated at the bottom of the shaft during the excavation was loaded into a large bucket that was lowered into said shaft and hoisted to the surface by an engine; that said bucket was made of iron, and was capable of holding about 1,500 pounds of earth at a load; that said bucket was furnished with a bail, which was attached to each side and somewhat below the middle of the bucket, so that when filled the bucket could be easily tipped, and the earth thus thrown from it; that said bucket was further equipped with a narrow strip of iron three or four inches long, called a "stub," which was welded to one side of the bucket near the top of the rim so that it extended two or three inches above the rim, near the bail and parallel with it; that, to prevent said bucket from tipping and spilling the earth that it contained while being hoisted to the surface, an iron ring was put on the handle or bail so that it could be placed over the stub before referred to, thus firmly to hold the bucket upright; that said bucket was lowered and hoisted by a rope and a hook attached to the bail, the rope connecting with the engine aforesaid; that said iron ring was not solid, the ends thereof not being welded but overlapping each other one or two inches.
It is further alleged that on said 13th day of September, 1900, and for some time prior thereto, appellee was in the employment of appellant, in sinking said shaft, as a common laborer; that on said day appellee was working at the bottom of said shaft, shoveling earth into said bucket; that appellee, with others working at the bottom of said shaft, had filled said bucket with earth, and the same had been hoisted to the top of the shaft, when suddenly, and without any warning, the iron ring referred to spread apart and became loosened from the iron stub round which it had been placed, thus causing the bucket to tip, and the earth it had contained to be precipitated down the shaft; that said bucket at this time contained about 1,500 pounds of earth, which in so falling struck the appellee on the head and the back, and that by reason thereof the appellee was greatly hurt and bruised; that by reason of said injuries he has lost two months of labor during which he could have earned $ 100, and that he has expended $ 200 for nurse hire, medicines, and medical attention in treating said injuries.
It is further alleged that said accident occurred because said ring was unfit and improper for the use to which it was put; that it was unfit because the ends overlapped, and were not solidly welded, thus permitting the ends thereof to spread, and to loosen the ring from round the stub; that said ring was old, rusty, worn, cracked, "and was too frail to resist the strain placed upon it;" that said ring had been constantly used for about twelve months, and on account of such long-continued use and its cracked condition it had become weak and unfit for use, and was not of an approved style, form, quality, and construction; that the appellant had knowledge of the defective condition of said ring, and its unfitness for use, or could have known thereof by the exercise of ordinary diligence, but negligently and carelessly used the same notwithstanding such defective and unfit condition; that the appellee had no knowledge whatever that said ring was unfit for use, unsafe, defective, and had been in use a long time, and was not of an approved style, quality, and construction, or that the same was cracked; that he had nothing whatever to do with the handling of said bucket and the adjusting of said ring on the stub; that he was wholly unfamiliar with such appliances, and was ignorant of the proper kind, quality, and construction of such rings as were used on this bucket, or of any other rings; that from the observations he had made of said ring it appeared to be amply safe and fit to do the work required of it, and that he noticed no defect therein, and supposed it a ring proper for the use to which it was put; that the appellee did his work at a great depth beneath the surface, and on account of the darkness did not have the opportunities and facilities to inspect said ring closely, but from what he observed he believed said ring to be welded, and was unable to observe any crack therein, and that he was compelled to rely upon the assurance that the appellant, in furnishing and providing said bucket and its equipments, had done its duty in furnishing appliances safe and proper for the work to be performed; that, if said ring had been sound, solid, and of a proper kind, the said accident should not have occurred, and that said accident did occur solely because of the negligence of appellant in the particulars hereinbefore set forth, and that said accident occurred without any fault or negligence on the part of appellee. Wherefore, etc.
It is manifest that this paragraph of the complaint proceeds upon the theory that the appellant failed to discharge its duty as a master to use ordinary care to furnish to the appellee reasonably safe appliances with which to perform the labor required of him as a servant. It is argued by appellant that this paragraph is insufficient on demurrer for want of facts, on the grounds: (1) That the alleged defect in the ring was obvious; (2) that it was as open to the observation of the appellee as it was to the observation of the appellant, and that the appellee had, therefore, assumed the risk of the defective appliance.
It is very clearly alleged in this paragraph of the complaint that appellee had no knowledge whatever that said ring was defective or unfit for use; that appellee had nothing to do with the handling and adjusting of said ring; that he was wholly unfamiliar with such appliances; and that because of the darkness in the shaft in which he worked, the appellee had no opportunity to inspect the ring closely to learn of its exact condition. While the general allegation that the servant had no knowledge of the defective condition of the appliance that the master furnished may not be sufficient where the complaint discloses, by the facts alleged, that the servant should have known of the defect producing his injury, it can not be said here that the facts alleged impair the force of the general allegation. We think the particular allegations reenforce the general one, and explain in detail why the appellee did not and could not know of the defective and unsafe condition of the ring. It does not appear from this paragraph that, in his circumstances, the defect was obvious to appellee; or that he, equally with the master, had opportunity to observe the defective condition of the ring. It was not a part of his work to handle the ring. The place in which he worked was dark so that he could not see the ring clearly. He did not know what constituted a proper ring. It was not his business to investigate. Appellee was the...
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