Vandalia Coal Co. v. Butler

• Decision Date: 19 March 1918
• Docket Number: No. 9472.,9472.
• Citation: 68 Ind.App. 245,119 N.E. 34
• Parties: VANDALIA COAL CO. v. BUTLER.
• Court: Indiana Appellate Court

68 Ind.App. 245

119 N.E. 34

VANDALIA COAL CO.

v.BUTLER.

No. 9472.

Appellate Court of Indiana, Division No. 1.

March 19, 1918.

Appeal from Circuit Court, Davies County; James W. Ogdon, Judge.

Action by Jonas Butler, by his next friend, Charles E. Butler, against the Vandalia Coal Company. From a judgment for plaintiff, and denial of a motion for new trial, defendant appeals. Affirmed.Henry W. Moore, of Terre Haute, and Alvin Padgett, of Washington, Ind., for appellant. Jesse F. Weisman, of Linton, and W. R. Gardiner, C. K. Tharp, and C. G. Gardiner, all of Washington, Ind., for appellee.

BATMAN, P. J.

This is an action by appellee against to recover damages on account of injuries alleged to have been sustained by him while in the employ of appellant in its coal mine. The complaint on which the cause was tried is drawn under what is known as the Employers' Liability Act of 1911. The first paragraph alleges, among other things, in substance, that on the 20th day of November, 1913, appellee and his father, who appears in this action as his next friend, were in the employ of appellant as loaders in a certain room of its coal mine; that on said date one Elmo Allen was in the employ of appellant as a driver to haul empty cars into said room and loaded cars out of said room by the use of a mule; that such cars were operated over a track constructed on a descending grade from the face of the coal, where such cars were loaded, to the entry; that by reason of such fact it was necessary to chock such cars so as to keep them in place while being loaded; that strips of wood, placed on such track under the front wheels of such cars, were used for such purpose; that in taking such cars from said room, it was necessary to remove such chocks; that it was a custom and rule in said mine that when a driver was ready to pull a car so chocked from a room in which it was loaded, that the loaders should assist the driver in removing such chocks; that in so doing one loader would remove the chock from the wheel on one side of the car, and another loader would remove the chock from the wheel on the other side of the same; that in removing such chocks it was the duty of the driver to give directions when the same should be removed, and it was the duty of such loaders to obey and conform to such directions; that on said date the said Elmo Allen, as such driver, hitched a mule to a loaded car, to remove it from the room in which appellee and his said father were working as loaders; that each of such loaders took their places at the front end of such car to remove the chocks under the wheels thereof when ordered so to do by such driver; that said driver thereupon directed said loaders to remove said chocks, and about the same time negligently caused said mule to suddenly start said car; that appellee, on receiving such directions, attempted to obey the same by removing one of said chocks, and while so doing his left hand was caught and crushed between said wheel, chock, and rail before he could remove the same; that such injury was caused solely by the negligence of appellant, through said driver, as its agent, servant, and employé, while appellee, without fault on his part, was conforming to an order he was under obligation to obey, by the directions of appellant, to his damage in the sum of $15,000.

The second paragraph of the complaint alleges,among other things, substantially the same facts as the first paragraph thereof, except that it does not allege that appellee received the injuries for which he sues, by reason of obeying and conforming to any order or direction given by appellant, or by any of its agents or employés. It alleges that he received such injuries by reason of the facts that said driver carelessly and negligently started the mule to haul the car of coal at the time appellee stooped and got ready to remove the chock from under the wheel of said car, and thereby caused said mule to pull said car over said chock and appellee's hand, while he was in the act of removing said chock, and before he had time so to do. It also contains certain allegations with reference to the tools, implements, and appliances furnished by appellant to appellee for the purpose of the performance of such work, being dangerous, defective, insufficient, and extrahazardous. Appellant filed a demurrer to each paragraph of the complaint, which was overruled. It also filed a motion to require appellee to state facts necessary to sustain certain alleged conclusions set out in said second paragraph of the complaint, which was also overruled. It also filed a further motion asking the court to strike out and reject certain specified parts of each paragraph of the complaint, which was overruled. Appellant then filed in answer in general denial, and the cause was submitted to a jury for trial on the issues thus formed. A verdict was returned in favor of appellee for $3,000, and judgment was rendered accordingly. Appellant filed a motion for a new trial, which was overruled. It now prosecutes this appeal, and has assigned appropriate errors, challenging the action of the court in the several rulings indicated, to which proper exceptions had been reserved.

[1] Appellant contends that the court erred in overruling its demurrer to each paragraph of the complaint, as neither of such paragraphs state facts sufficient to constitute a cause of action against it. It states its objections as follows: (1) The first paragraph shows on its face that the alleged order was in no sense an order, but was purely and only a signal from the driver to the loaders informing them that he was ready to do the spragging; (2) neither paragraph alleges that in responding to the signal it was necessary for appellee or his father to place their hands, or either of them, under the car wheel, or that they were required or expected to do anything which required time; (3) neither paragraph alleges that reasonable times was not given and allowed; (4) the second paragraph alleges that the chocks were removed at a signal from the driver “as said driver would cause the mule to start said car,” leaving the only reasonable inference to be that the pulling of the chocks and the starting of the mule was to take place at the same time. We have examined the complaint, in the light of these objections, and find that each paragraph contains allegations of facts, either directly stated, or fairly and reasonably implied, sufficient to constitute a cause of action on the theory adopted by the court on the trial of the cause. Under the rules for construing a complaint as stated in the well-considered case of Domestic Block Coal Co. v. De Armey (1913) 179 Ind. 592, 100 N. E. 675, 102 N. E. 99, we hold there was no error in overruling appellant's demurrer.

[2] The second paragraph of the complaint contains a number of allegations with reference to the places, ways, means, methods, management, tools, implements, equipment, appliances, etc., being defective, dangerous, insufficient, and hazardous, and as to knowledge thereof by appellant, its agents, servants, employés, and officers, long before the happening of the grievances complained of, and charges carelessness and negligence in adopting, furnishing, and using the same, etc. In the formation of the issues, appellant claimed that such statements were conclusions, and filed a motion under an act, approved March 5,1915 (Acts 1915, p. 123), to require appellee to state facts necessary to sustain the same. This motion was overruled, and appellant predicates error on such ruling. The motion is long, and no good purpose could be served by setting it out in full, as we have sufficiently indicated the character of the alleged conclusions, for the purpose of a determination of the question raised. The motion itself is not strictly formal, as it fails to set out wherein such paragraph is sufficient, as required by such act. But waiving such informality and considering the motion on its merits, we are unable to agree that the court committed reversible error in overruling the same. It was held under a former act, of which the act of 1915 is an amendment, that it is only those conclusions which are necessary to the sufficiency of the pleading that are affected thereby. Premier Motor Mfg. Co. v. Tilford (1916) 61 Ind. App. 164, 111 N. E. 645;S. W. Little Coal Co. v. O'Brien (1916) 113 N. E. 465;Indiana Mfg. v. Coughlin (1917) 115 N. E. 260. The act as amended is not changed in this regard, and hence such decisions are still controlling. The paragraph of complaint, to which such motion was addressed, was drawn under the Employers' Liability Act of 1911, and proceeded on the theory that appellee received his alleged injuries by reason of the negligence of a fellow servant in the employ of appellant, as determined by the trial court. It contained facts sufficient to constitute a cause of action on such theory, independent of any matters properly denominated as conclusions in such motion. There was, therefore, no available error in overruling such motion.

[3] Appellant also filed its motion to strike out and reject certain parts of each of the first and second paragraphs of the complaint, and assigned reasons therefor. The parts sought to be stricken out of the first paragraph of the complaint relate to certain alleged instructions given by appellant, to its drivers and loaders with reference to moving loaded cars from its mine, and with reference to the duty of appellee, as a loader, to obey the orders of the driver in removing the chocks, on the occasion he received his alleged injuries. Such allegations were allegations of facts, clearly pertinent to the theory on which such paragraph is drawn, and the court did not err in refusing to strike out the same. The parts of the second paragraph of complaint, which appellant sought to have stricken out, were mainly the same matters, alleged in his former motion to be conclusions, and were of the nature...