The Brazil Block Coal Co. v. Gaffney

• Decision Date: 25 June 1889
• Docket Number: 13,018
• Citation: 21 N.E. 1102,119 Ind. 455
• Parties: The Brazil Block Coal Company v. Gaffney
• Court: Indiana Supreme Court

21 N.E. 1102

119 Ind. 455

The Brazil Block Coal Company v. Gaffney

No. 13,018

Supreme Court of Indiana

June 25, 1889

From the Clay Circuit Court.

Judgment affirmed, with costs.

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

J. A McNutt and J. Q. Cornell, for appellee.

Berkshire J. Coffey, J., took no part in this case.

OPINION

Berkshire, J.

There are two paragraphs in the complaint, the substance of each of which we will state. The substance of the first paragraph is as follows:

On the 2d day of July, 1885, the appellant was the owner and in possession of a certain coal mine, known as "No. 3," and was on that day engaged in mining and removing therefrom large quantities of coal; and to facilitate the removal of the coal mined from said mine, a switch had been built, connecting the said mine with the Vandalia railroad, which, together with certain cars that were on said switch for the purpose of receiving the coal that was being mined, was under the absolute control of the appellant, who on that day was engaged in loading, switching and coupling said cars, the said loading, switching and coupling being required in the removal of the coal that was being mined; that the appellant kept in its employ at said mine one Thomas Young, who was its bank-boss, or mine superintendent, and who was, by virtue of his position and the authority conferred upon him, authorized and empowered to hire and discharge workmen at and about said mine, and given the management and control of all the work in and about the same, and to whom was delegated all the duties which the appellant owed to its employees, among which were the duties of keeping the said mine, its rooms and entries, in good and safe repair, to use reasonable diligence in the employment of careful and prudent workmen, to give them instructions concerning the subject of their employment and duties with respect to each other, and to caution young and inexperienced workmen of the risks to which they would be exposed in operating dangerous machinery, handling unsafe implements, or in performing work which would expose such persons to perils of which they had no knowledge. To assist said Young in performing his duties as an overseer of the workmen and work, one John Mushett was employed by and with the knowledge and consent of the appellant, and with like knowledge and consent was given the position of weighman, or weigh-boss, of said mine, and the immediate control of the workmen and work at and about the top of the same, including the management and control of the cars, and everything pertaining to them.

On the day of -----, 1885, the appellee was hired by the said Young (the contract being made with his mother, his natural and legal guardian), as a workman for the appellant, and was placed under the control of the said Mushett, and was assigned to the work of greasing bank-cars when elevated out of said mine, at a place called "Tipple;" that after the appellee, who was of very tender years, had been at work for the appellant for a number of weeks under the control of the said Mushett and subject to his orders, the said Mushett directed him to assist one Haines, who was also subject to the orders of Mushett, in switching the cars on said switch, and at the proper time to couple the same; that in giving the said order the said Mushett was acting in the line of his duty, and well knew that the appellee was very immature in years, without experience in, and physically unable to perform, such work, which was very dangerous and specially hazardous, and at the time of the giving of said order to the appellee, or before, no warning was given him of its dangerous or hazardous character; and had the said Mushett, or any one else, cautioned the appellee, owing to his tender years (being but ten years of age) and the immaturity of his mind, he could not have retained the words of caution in his mind with sufficient distinctness to have performed such work with safety to himself; that the said Young wholly failed to give the appellee instructions concerning the scope of his employment or his relation to the other workmen at the time he was placed under the control of the said Mushett, and that such instructions were never given him at any time by any person; and in consequence of the failure of the appellant to do its duty in the respect named, the appellee, while assisting the said Haines in the attempt to couple the said cars, and while exercising that care and caution which might be expected of one so young, and without fault or negligence on his part, his left hand was caught between the cars and so bruised, crushed and mangled that amputation became necessary.

The second paragraph differs from the first, in that it alleges that the appellee was employed to do non-hazardous work, and charges that the work which he was doing was hazardous, and details the circumstances attending the accident, which are, in substance, as follows: That after the appellee had been in the employ of the appellant for some weeks, engaged in the performance of such work as came within his contract of hire, and subject to the control of the said Mushett, he was, with the knowledge and consent of the appellant, directed, ordered and compelled by one Haines, the leveller of said mine, and one of the employees of the appellant, and who was under the control of the said Mushett, and in the presence of the latter, and with his consent, knowledge and acquiescence, and while Haines and Mushett were acting within the scope of their employment, to quit his regular work and assist the said Haines and Mushett in coupling cars delivered on said switch for the purpose aforesaid, which work was dangerous and specially hazardous, and attended with great peril for one so young and inexperienced, and was no part of the work he had contracted to perform; that Haines well knew, when he required and compelled the appellee in the manner stated to engage in said work, of the dangerous character of the same, and knew his age and inexperience, and gave him no information, warning or caution, nor did anyone else.

Demurrers were overruled to each of these paragraphs of complaint, and exceptions reserved, after which the appellant answered in one paragraph, which was a general denial.

There was a jury trial, resulting in a verdict for the appellee, and, over a motion for a new trial, followed with the proper exceptions, judgment was rendered for the appellee.

Several errors are assigned, the substance of which is as follows:

1. The court erred in overruling the demurrer to the first paragraph of complaint.

2. The court erred in overruling the demurrer to the second paragraph of complaint.

3. The court erred in overruling the motion in arrest of judgment.

4. The complaint does not state facts sufficient to constitute a cause of action.

5. The court erred in overruling the motion for a new trial.

We need not consider the fourth error, as it is covered by the first and second. In our opinion both paragraphs of the complaint are good, and the court committed no error in overruling the demurrers.

The first paragraph of the complaint does not allege that the appellee was hired to perform non-hazardous work, or to perform labor of a particular kind or character; but the age of the appellee is stated to have been but ten years, that because of his tender age his mind was immature, and he was without experience.

Where a boy but ten years of age, and without experience, is employed to perform labor, the character of the labor to be required of him is implied; it is such as is within the compass of a boy's age and experience.

No one will contend, we think, that the master who employs a ten year-old boy, without experience, expects of him the same amount or kind of service that he expects when he employs a mature and experienced man. And that the appellant contemplated, when it took the appellee into its service, that he was to perform such labor as would be within his capacity, he was at first given a position down in the mine, but as soon as his extreme youth was made known he was given employment at the top of the mine, lighter and less dangerous in character.

Counsel for the appellant claim that the first paragraph of the complaint falls within the reasoning of this court in the case of Brazil, etc., Coal Co. v. Cain, 98 Ind. 282. We do not think so. It is true that the employee in that case was a minor, but he was nineteen years of age, a well developed and apparently strong man, and, to all appearances, as well qualified to understand and provide against the hazard or danger that would attend any kind of labor that he might have been called on to perform as if he had been an adult, and in the consideration of the case he is so regarded. We quote from the opinion:

"In the case at bar the appellee does not claim in her complaint that her son did not have, notwithstanding his alleged non-age or minority, full knowledge of all the hazards of his employment. On the contrary, it appeared from the complaint that appellee's son was nineteen years of age at the time of his injury and death, and for some time previous had been an employee of the appellant in mining coal. It must be assumed, therefore, in the absence of any showing to the contrary, that he voluntarily engaged in driving the coal-cars through the avenues of the mine, with full knowledge of the dangers of the business. In such case neither the employee nor his mother, the appellee, could legally claim that on account of his infancy the appellant should be held liable for his injury and death caused, as alleged, by the negligence of his fellow servant. Although the appellee's son was a minor, under the age of twenty-one years, at the time he entered...