The Brazil Block Coal Co. v. Hoodlet

• Decision Date: 26 May 1891
• Docket Number: 14,793
• Citation: 27 N.E. 741,129 Ind. 327
• Parties: The Brazil Block Coal Company v. Hoodlet
• Court: Indiana Supreme Court

27 N.E. 741

129 Ind. 327

The Brazil Block Coal Company v. Hoodlet

No. 14,793

Supreme Court of Indiana

May 26, 1891

Petition for a Rehearing Overruled Oct. 14, 1891.

From the Clay Circuit Court.

Judgment affirmed, with costs.

G. A Knight and A. W. Knight, for appellant.

D. E Williamson and J. A. McNutt, for appellee.

McBride, J. Coffey, J., took no part in the decision of this cause.

OPINION

McBride, J.

This was a suit by the appellee to recover of appellant damages for personal injuries alleged to have been sustained by falling into a coal shaft.

Aside from prefatory averments, the description of the character and extent of the injuries sustained, and the prayer, the complaint is as follows:

"That, on the 4th day of January, 1888, and for a long time prior thereto, said defendant was in possession of and controlled and operated a certain coal mine in said county of Clay, and employed and operated a large number of employees and laborers, to wit, one hundred men; that the mine of said company was entered by a shaft or opening of about 100 feet in depth; that at the aforesaid date the plaintiff, being in the employment of said defendant as a blacksmith, his principal business being to shoe the mules and horses connected with the mining business of said company, to sharpen coal picks and other tools of the miners, as well as other work when required by said defendant; that on said date, the pump in said mine being out of repair, the plaintiff was ordered by the defendant to enter said shaft and go to the bottom of said mine or shaft, 96 feet, and make repairs on said pump; that in pursuance of such orders so given by said bank boss, he did enter said shaft and descend the same to the bottom, and when said repairs had been made and finished, the said plaintiff was directed and ordered by the engineer in charge of the machinery and said pump to take the tools and packing used in said repairs to the engine-house on said premises of said defendant, and as was otherwise his duty to do; and he avers that in coming out of said shaft and reaching the surface of the ground at the top of the shaft, he proceeded by the usual way from the top of shaft to the tool-house for the purpose of returning the tools and packing used in the repairs of said pump; that the usual and ordinary way was along and by said shaft to the engine-house, and that in passing around the mouth of said shaft, using all necessary care and prudence, and without any fault or negligence on his part, accidentally and without negligence slipped and fell into the mouth of said shaft and to the bottom thereof, 96 feet; and that plaintiff, without negligence on his part, so fell into said shaft, and to the bottom thereof by reason of the negligence and fault of the defendant failing and neglecting to fence off and to keep enclosed the top of said shaft and the entrance thereof by vertical, flat or other gates or protection, covering and protecting the mouth of said shaft as required by law, but with full knowledge of the fact of such omissions negligently and carelessly permitted the mouth of said shaft to remain open and exposed, well knowing the dangers to its employees compelled to work therein and around and about said shaft; that at the time and place aforesaid, when and where said plaintiff fell into said shaft, he was using all the care that he possibly could passing thereby."

The first two errors assigned question the sufficiency of the complaint.

We can probably best state the objections urged to the complaint by quoting from appellant's brief. Appellant's counsel say:

"We insist, first, that this complaint shows that the danger to which appellee was exposed, namely, the unprotected mouth of the shaft, was an open and obvious one; that appellee knew as well as appellant that it was not protected; that the fact was discoverable by him by the use of his eyes; that he could not avoid knowing it, and is conclusively presumed to know, what he might and could have observed by the use of his senses; he nowhere in his complaint avers his ignorance of the unprotected mouth of the shaft about which he was working, or that he complained of it; or that the appellant induced him to continue at work under a promise to fix it, and that appellee's complaint shows that this was a known danger which he voluntarily encountered; that it was one of the risks he voluntarily assumed under his employment, and was as well known to him as to appellant, and that, therefore, he is not entitled to recover."

They also insist that the specific averments of the complaint, tending to show that appellee was guilty of contributory negligence, are sufficient to control the general averment that the appellee was without fault.

It is too plain for controversy that one who needlessly and recklessly exposes himself to open and obvious danger is guilty of negligence. If he thereby suffers injury, he is guilty of such negligence as will preclude a recovery against the person causing such injury.

The law requires that men shall use the senses with which nature has endowed them, and when, without excuse, one fails to do so, and is injured in consequence, he alone must suffer the consequences. Lake Shore, etc., R. W. Co. v. Pinchin, 112 Ind. 592, 13 N.E. 677; City of Plymouth v. Milner, 117 Ind. 324, 20 N.E. 235.

We can not agree with appellant's counsel that such a state of facts is shown by the complaint in this case.

A much more difficult question is presented by the claim that the injury was a consequence of one of the risks which the appellee assumed under his employment.

At the time appellee received the injury the following statute was in force, and had been for several years:

"The owner or agent of every coal-mine shaft or slope, at the end of six months from the time this act takes effect, shall keep the top of every such shaft or slope, and the entrance thereof, securely fenced off by vertical or flat gates covering and protecting the mouth of such shaft or slope. The entrance of an abandoned shaft or slope shall be securely fenced off, so that no injury can arise therefrom. The owner or agent, or either of them, violating the provisions of this section shall be fined in any sum not exceeding one hundred dollars for each day or part of a day the same is violated." Section 5468, R. S. 1881. The complaint charges that the appellant had failed to comply with this law, and had negligently left the mouth of the shaft in question open and exposed, and that it was by reason of such alleged violation of law he was injured.

The law is well settled that a servant assumes all the ordinary and usual risks of the business upon which he enters, so far as these risks are known to him, or could be readily discernible by a person of his age and capacity, in the exercise of ordinary care. Shearman and Redfield Negl., section 185; Cooley Torts, marginal page 541, and cases cited by both authors; Louisville, etc., R. W. Co. v. Frawley, 110 Ind. 18, 9 N.E. 594; Atlas Engine Works v. Randall, 100 Ind. 293 (50 Am. Rep. 798); Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187.

This is true, even though the duties of the service may be from their nature necessarily hazardous. It is assumed that the servant, when he engages in the employment, does so in view of all the incidental hazards, and that he and his employer, when making their negotiations, fixing the terms and agreeing upon the compensation that shall be paid to him, must have contemplated these as having an important bearing on their stipulations.

As the servant then knows that he will be exposed to the incidental risk, he must be supposed to have contracted that, as between himself and the master, he would run this risk. Cooley Torts, supra; Hutchinson v. York, etc., R. W. Co., 5 Exch. 343 (351).

It is also settled law that, notwithstanding the continuing duty resting upon the master to provide for his employees suitable and safe places and appliances for their work, the employee who voluntarily continues in the master's service after notice of defects in tools, machinery, or other appliances which augment the danger of his service, thereby assumes the risk as increased by the defect, unless the master expressly or impliedly promises to remedy the defect. Indianapolis, etc., R. W. Co. v. Watson, 114 Ind. 20, 14 N.E. 721, and authorities there cited.

This rule, while in some respects a harsh one, and subject to much abuse, is within proper limits wise, and is justified by sound public policy. As a rule employers can only learn of defects in appliances furnished through the vigilance and faithfulness of their employees.

The personal interest and sense of personal responsibility which this rule casts upon the employee must certainly tend to insure better and safer service. It is also a matter in which the public are interested. As is said by Judge Cooley: "In many employments the public are compelled to rely upon the caution and diligence of servants as the chief protection against accidents which may prove destructive of life or limb; and any rule of law which would give the servant a remedy against the master for any injury resulting to himself from such an accident, instead of compelling him to rely for his protection upon his own vigilance, must necessarily tend in the direction of the abatement of his vigilance, and in the same degree to increase the hazards to others." Cooley Torts, marginal page 542.

While as above stated, we regard the rule within proper limits as a wise and just one, we are not disposed to enlarge it; on the contrary, as it is asserted in some of the cases, it should be restricted. The rule as laid down in many cases omits the limitation growing out of the express or...