Vandalia Coal Company v. Coakley
| Decision Date | 15 February 1916 |
| Docket Number | 23,017 |
| Citation | 111 N.E. 426,184 Ind. 661 |
| Parties | Vandalia Coal Company v. Coakley |
| Court | Indiana Supreme Court |
Rehearing Denied April 27, 1916.
From Superior Court of Vigo County; John E. Cox, Judge.
Action by Jeremiah J. Coakley against the Vandalia Coal Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under subd. 2, § 1394 Burns 1914, Acts 1901 p. 565.)
Affirmed.
Henry W. Moore and Beasley, Douthitt, Crawford & Beasley, for appellant.
Hamill Hickey & Evans, for appellee.
Action by appellee against appellant, for personal injuries sustained because of alleged violation of a statutory duty. Section 13 of an act approved February 28, 1905, relating, among other things, to the safety of persons employed in coal mines, provides that "On all single track hauling roads wherever hauling is done by power * * * upon which the persons employed in the mine must travel on foot to and from their work, places of refuge must be provided in the side wall, not less than three feet in depth, measuring from side of car, and four feet wide, and not more than twenty yards apart, unless there is a clear space of at least three feet between the side of the car and the side of wall, which space shall be deemed sufficient for the safe passage of men." § 8581 Burns 1914, Acts 1905 p. 65.
The first paragraph of complaint, on which the case was tried, alleges that appellant, operated a coal mine; that from the mine shaft there extended for about 1,000 feet south, what was known as the main south entry, which was intersected at its south end by what was known as the fifth entry east, which connected with another called the first entry north, off which was turned a room designated as No. 26, and in which, for a long period of time, appellee was employed by appellant in mining coal; that appellant hauled its coal to the shaft by electric power, over a single track hauling road, located in said main south entry; that the coal was hauled in cars of specified dimensions; that the road was the passageway used by appellee and other employes in going to and from their places of work, and over which they must have passed on foot, between their places of work and the shaft; that there was in said main south entry no clear space of as much as three feet between the side of the wall and the side of the cars operated on the track, and that appellant negligently, in violation of said statute, failed to provide any place of refuge in the side walls of said entry; that on a specified day appellee had been engaged in his usual work in said room, and, in the evening, was walking therefrom to the shaft, up the main entry south and had reached a point about 400 feet south of the shaft when an electric motor car rapidly approached him from the north and, though appellee tried to get far enough away from the track to avoid injury, he was caught between the side of the moving car and wall of the entry and was seriously injured; that the proximate cause of the injury was the negligent failure of appellant to provide any place of refuge. There is no allegation that it was practical, in the operation of the mine, to construct the places of refuge contemplated by the statute. Appellant's demurrer to the complaint was overruled. The ruling occurred previous to the taking effect of chapter 157, Acts 1911 p. 415, § 344 Burns 1914. There was a trial by jury, with verdict and judgment for appellee. The errors here assigned are (1) that the court erred in overruling the demurrer, (2) that the complaint fails to state facts sufficient to constitute a cause of action, and (3) that the court erred in overruling appellant's motion for a new trial.
Appellant earnestly contends that the complaint is defective for failure to aver that it was practicable to provide the places of refuge contemplated by the statute. We can not accept this view. Other safety provisions of the act have been considered by this court and held as importing an absolute duty. In Antioch Coal Co. v. Rockey (1907), 169 Ind. 247, 82 N.E. 76, it was contended that the statutory duty to secure loose overhead rocks, etc., only applied where the same was practicable, but it was held that if the securing were impracticable the miners must not be permitted to resume work until the danger should be obviated by removal of the loose rocks, etc. In Peabody-Alwert Coal Co. v. Yandell (1913), 179 Ind. 222, 100 N.E. 758, the doctrine declared in Antioch Coal Co. v. Rockey, supra, was followed. We perceive no reason why the statutory duty here considered is not as mandatory in character as those involved in the two cases cited.
Some of the material allegations of the complaint are by way of recital. It is contended that such allegations must be disregarded. Appellant's brief was filed before the enactment of chapter 322, Acts 1913 p. 850, § 343a Burns 1914, and before the decision of the case of Domestic Block Coal Co. v. DeArmey (1913), 179 Ind. 592, 100 N.E. 675, 102 N.E. 99. Under the rule declared in the DeArmey case, and to which we adhere, the complaint is sufficient to repel appellant's demurrer, although it is subject to criticism for the immaterial matter and vain repetitions embraced therein, as well as for its failure to set out directly, rather than indirectly, the material facts on which appellee relied. However, the appropriate remedies for the defects apparent in this complaint are found in motions to make more specific and to strike out redundant matter. As the complaint was sufficient on demurrer, it must be sufficient when first assailed here, and consequently we do not further consider appellant's second assignment of error.
Instruction No. 12, given by the court, informed the jury that appellee was entitled to a verdict on a finding of certain enumerated facts. The instruction is assailed for the alleged failure to state the material fact of a finding that appellee was compelled to use the hauling track as a footway. Conceding, without deciding, that such defect exists, it must be held harmless, because the undisputed evidence shows that he was so compelled in walking to and from his work. The instruction is also assailed because it fails to enumerate a finding that it was practical to provide the places of refuge. What we have said in relation to the complaint answers this objection. Other minor objections to this instruction are presented, but we are of the opinion that it enumerates all the material allegations of the complaint with the possible exception above noted, and with the possible exception of another of like character. The giving of the instruction involved no reversible error.
Instruction No. 1, given by the court, informed the jury that the plaintiff could not recover unless all the...
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