The Linton Coal And Mining Co. v. Persons
| Decision Date | 16 April 1896 |
| Docket Number | 1,884 |
| Citation | 43 N.E. 651,15 Ind.App. 69 |
| Parties | THE LINTON COAL AND MINING COMPANY v. PERSONS |
| Court | Indiana Appellate Court |
From the Sullivan Circuit Court.
Judgment reversed, with instructions to sustain appellant's motion for a new trial.
E Short, C. L. Holstein and C. E. Barrett, for appellant.
C. E Davis, W. V. Moffett, J. C. Briggs and J. W. Lindley, for appellee.
The appellee sued and recovered judgment against the appellant, for personal injuries received by him from falling slate, while going to his work, as appellant's servant in its coal mines. This cause was commenced in the Greene Circuit Court, and upon a trial in that court the appellee recovered judgment in the sum of $ 2,000.00. On appeal to this court, the judgment of the Greene Circuit Court was reversed. Linton Coal and Mining Co. v. Persons, 11 Ind.App. 264. After the cause was remanded to the Greene Circuit Court, the venue was changed to the Sullivan Circuit Court, where a trial was had by jury and a verdict returned in favor of appellee, assessing his damages at $ 3,000.00, for which amount judgment was rendered in favor of appellee.
The first, second and fourth specifications of error assigned call in question the sufficiency of the complaint. On the former appeal the complaint was held to be invulnerable to attack even on demurrer. That holding cannot now be questioned. It is the law of the case, and whether right or wrong cannot be reviewed on this appeal.
The third specification of error is that the court erred in overruling appellant's motion for a new trial.
There is no apparent conflict in the evidence as to the condition of the entry to the mine where appellee was injured. That it was dangerous on account of a layer of drawn-slate, which was liable to fall at any time, is apparently admitted. It also appears that draw-slate, when unsupported by timbers, is liable to fall at any time, but it may not fall for years, and that its treacherous nature is known to all experienced miners. The appellee was an experienced miner, and had worked for appellant some time before he was injured, and had passed in and out of this entry at least twice each day during working days from two and a half to three months before he was injured, which occurred in December, 1892. The entry was made in 1891, and although notice of its dangerous condition had been given to the appellant's mine boss, some time prior to the time appellee was injured, no steps were ever taken, either to remove the loose slate or to protect it from falling. The appellee testified that he did not know of the dangerous condition of the roof of the entry.
The occupation of coal mining, where the servant must go into, as it were, the very bowels of the earth by means of shafts and tunnels made for that purpose, and to work in rooms, made by the removal of earth, slate and coal, is one of unusual peril, and those who engage in it necessarily assume great risks. The nature of the employment is, in itself, so very hazardous that those who engage in it must know that it is attended with risks against which human foresight and skill cannot guard. One of the dangers attendant upon mining is that from falling earth, stone, slate or coal. These dangers are greatest, perhaps, in the rooms where the miner works, while the tunnels or entry through which he may have to pass to and from his work can be more or less guarded and protected. That, as to all of the dangers ordinarily incident to the employment, the servant assumes the risks, is elementary law. But to determine what are the risks naturally and ordinarily incident thereto, is not always easily done, depending to a very great extent upon the nature of the employment.
It may be safe to state, however, as a general proposition, that under the usual and ordinary contracts of employment between a master and a servant, whether the engagement be for service in a factory, on a railroad, or in a coal mine, the master undertakes to use reasonable care to see that his machinery is in good condition and repair, and that the place where the servant is to work is free from dangers other than those which are naturally attendant upon the work to be performed. Hence, when it is said that a master operating a coal mine shall furnish his servants with a reasonably safe place to work, it is not intended that the place shall be so timbered and guarded that rock, slate, earth or coal cannot fall, because to so protect the working place must necessarily destroy the ability to operate the mine. And if the place furnished by the master appears to the servant to be free from any dangers except those which are naturally incident to the work, the servant, unless he sees that it is not so, has a right to assume that the master has performed his duty and that the place is as it appears. In other words, the servant is not bound to seek for latent defects or dangers, which do not necessarily arise from the nature of the employment and against which it is the duty of the master to use reasonable care to guard. And when it is said that the servant assumes the risk of dangers of which he has knowledge, it is not meant that he assumes no risks except from dangers of which he has actual knowledge or which are patent, for he does assume the risk of latent as well as patent dangers, which are a natural incident of the service and which it is not the duty of the master to guard against, that is; dangers, whether visible or invisible, known or unknown, at the time of employment, if they are such as naturally arise from the nature of the work to be performed, he assumes. It is for this reason that he is required to exercise reasonable care to ascertain and know of dangers which may exist or even arise suddenly and confront him during his service. He cannot shut his eyes to dangers that are obvious to those engaged with him who are ordinarily prudent.
As said by Coffey, C. J., in the case of the Evansville, etc., R R. Co. v. Henderson, 134 Ind. 636, 33 N.E. 1021 (639): ...
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