Vandalia Coal Company v. Price
| Decision Date | 16 February 1912 |
| Docket Number | 21,733 |
| Citation | 97 N.E. 429,178 Ind. 546 |
| Parties | Vandalia Coal Company v. Price, Administrator |
| Court | Indiana Supreme Court |
Rehearing Denied November 22, 1912.
From Monroe Circuit Court, James B. Wilson, Judge.
Action by Ival O. Price as administrator of the estate of Archibald Aikman, deceased, against the Vandalia Coal Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Ulric Z. Wiley, Charles E. Barrett, Duncan & Batman and Arthur H. Jones, for appellant.
Henry W. Moore and Oscar E. Bland, for appellee.
Appellee Price, as administrator, instituted this action against appellant, for damages for personal injuries to appellee's decedent, which resulted in his death.
The complaint was in five paragraphs, to each of which a demurrer was addressed and overruled, and appellant filed an answer of general denial. The trial resulted in a verdict and judgment for appellee in the sum of $ 7,500. A motion for a new trial was overruled. Appellant assigns as error, among others, the action of the lower court in overruling its demurrer to each paragraph of complaint.
The action, as disclosed by each paragraph, is based on a common law liability. Each paragraph is very long. The first alleges, in substance, that appellant is a corporation, and was operating a coal mine, consisting of a shaft from the surface of the earth to a bed of coal, and of entries from the shaft through the coal, from which entries rooms are turned, and from which rooms appellant was engaged in mining and hauling coal; that on November 12, 1907 appellee's decedent was employed by appellant, in the capacity of a driver of a motor-car through the mine entries, to haul coal; that among the roadways in the mine was one known as the "main north entry", running north from the shaft, from which main entry branched off eastwardly certain other entries, one of which was known as the "first east entry"; that appellant had then, and long prior thereto, an electric hauling system for pulling cars of coal to the shaft; that said system consisted of wires running along the entries, charged with strong electric currents, and connected to the wires and running on the entry tracks were large electric engines which hauled the cars of coal; that decedent, acting as such motor engineer at said date, was running a motor backward and forward through the north and first east entries; that he was not a regular engineer, but, on appellant's order, was acting as substitute for the regular engineer; that at that time, and for many months prior thereto, said first east entry was defective and dangerous for the following reasons: it had been constructed too narrow; in its construction, appellant had negligently placed legs, supporting the cross-ties designed to keep the roof from caving in, within thirteen inches of the track rails; that in said construction, appellant had negligently placed one of said cross-ties, designed to support the roof of the entry, loose, on the top ends of the upright legs leaning against the walls, and negligently failed to use any wedge, spike, nail or other device to hold the cross-tie firmly on the legs, and failed to fasten the legs in any manner, by braces or otherwise; that the roof cross-tie was about eight inches square, and had no support except the legs, on which it lay unfastened; that the negligent construction was permitted to remain, without alteration, until the time of the accident, and appellant had full knowledge of all the above facts, and appellee's decedent was wholly ignorant thereof; that on said date decedent was ordered by appellant to drive a motor, attached to loaded cars of coal, through said first east entry; that, pursuant to appellant's order, decedent did haul the loaded cars; that the cars stuck out on each side of the track as much as thirteen inches; that on said date, and prior thereto, said cars bumped against said legs supporting said loose cross-tie, and without any fault of decedent, said cars, after the motor had passed said legs, struck against the leg on the north side of the entry, and knocked it down, and thereby dislocated the cross-tie, which, after being dislocated, hung across the entry, remaining fastened at the upper south end, and wedged against the roof at that end, but the other end of the tie hung near and just above the rails; that on the return trip, riding on the motor with his back to the east, and his hands on the lever controlling the motor, which position was assigned him by appellant, and while in the exercise of due care, decedent ran against said cross-tie, and was caught between it and the top of the motor, and sustained fatal injuries; that decedent, on his return trip, could not and did not, because of dim light, see the hanging cross-tie in time to avoid the accident; that as soon as he did see, or could have seen, the tie, he shut down the motor, but the momentum thereof was such that it continued running until after decedent was injured. It is also averred that appellant negligently failed sufficiently to light the entry where the accident occurred, and sufficiently to light the electric motor.
The second paragraph of complaint contains substantially the same allegations as the first, and the further charge that appellant negligently constructed the legs which supported the loose cross-tie so that the latter was lower than the other cross-ties, and was too low, and, by reason thereof, loaded cars of coal passing thereunder rubbed against and displaced it.
The third paragraph contains substantially the same allegations as the first, with the exception that the specific negligence therein charged is that appellant, in the construction of the entry, left a cross-tie resting loosely on top of legs, six inches in diameter, which stood up alongside the edge of the entry; that the cross-tie was in no way fastened to the legs, and that cars running over the track jarred one end of the tie loose, so it fell near the rail.
The fourth paragraph contains substantially the same allegations as the first, except that, in addition to the charge of negligence in the construction and maintenance of the loose cross-tie, it further alleges that the track was constructed and maintained on an uneven and rolling surface, so that cars running at ordinary speed, rocked, "one end up, and one end down." It is alleged that because of the negligent construction and maintenance, the vibration of the running cars caused the displacement of the loose cross-tie. This paragraph fails to charge appellant with knowledge of the defective construction and maintenance.
The fifth paragraph contains the same substantial allegations as the first, except that the negligence charged in this paragraph consists of (1) insufficient lighting of the entry; (2) the alleged fact that the track was constructed and maintained on an uneven surface, so that the cars loaded with coal bounced and rocked, and sometimes caused lumps of coal on top to strike the cross-ties; (3) the loose construction and maintenance of the cross-tie that fell, as alleged in the first paragraph. It is alleged that the cross-tie was displaced because it was struck by a piece of coal on top of a car, which was bouncing and rocking. This paragraph contains no allegation that appellant knew of the existence of either of the three defects charged.
Appellant claims that the first, second and third paragraphs of complaint are insufficient, because of lack of proper averments to show that the risk of danger was not assumed by decedent.
Assumption of risk, as a defense against actionable negligence, depends wholly on the servant's knowledge, actual or constructive, of the existence of danger, and in the absence of either actual or constructive knowledge there is no assumption. 1 Labatt, Master and Servant 638; City of Fort Wayne v. Christie (1901), 156 Ind. 172, 59 N.E. 385; Standard Forging Co. v. Saffel (1911), 176 Ind. 417, 96 N.E. 321. Here, it is averred in each of the first three paragraphs, in express terms, that decedent had no knowledge of the dangers alleged. The above paragraphs are also criticised, because, it is claimed, conclusions, rather than facts, are stated, and Pittsburgh, etc., R. Co. v. Peck (1905), 165 Ind. 537, 76 N.E. 163, is cited in support of the proposition. The rule stated in that case, that the absence of facts to sustain the pleader's conclusion would render the pleading insufficient, is not open to controversy; but sufficient facts are alleged in each of the three paragraphs to charge actionable negligence. There was no error in overruling the demurrer to the above three paragraphs. It is contended by appellant that neither the fourth nor the fifth paragraph is sufficient to repel a demurrer, because neither alleges knowledge, by appellant, of the defects complained of.
It is settled beyond controversy that a master is not liable to his servant for injuries caused by the unsafety of the working place, unless the master had knowledge, actual or constructive, of the danger or defect, and such knowledge must be pleaded. Malott v. Sample (1905), 164 Ind. 645, 74 N.E. 245, and cases cited; 26 Cyc. 1390.
But a direct averment of knowledge, actual or constructive, is unnecessary where the facts that are averred are such as necessarily imply such notice. Pennsylvania Co. v. Sears (1894), 136 Ind. 460, 34 N.E. 15, 36 N.E. 353; Pittsburgh, etc., R. Co. v. Adams (1886), 105 Ind. 151, 5 N.E. 187; Cleveland, etc., R. Co. v. Lindsay (1904), 33 Ind.App. 404, 70 N.E. 283, 70 N.E. 998; City of Huntington v. Burke (1899), 21 Ind.App. 655, 52 N.E. 415; Ohio, etc., R. Co. v. Pearcy (1891), 128 Ind. 197, 27 N.E. 479.
Each paragraph alleges negligent defects in the original construction of...
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