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of complaint insufficient, and the court erred in 7. MASTER AND SERVANT-INJURY TO SERYnot sustaining the demurrer thereto for want! ANT-ASSUMPTION OF RISK-INSTRUCTION,

An instruction that where a coal miner of facts. This error requires the reversal

learns of the unsafe condition of the mine of the judgment, without consideration of the by reason of an overhanging stone, and conruling on the motion for a new trial.

tinues to work there without notifying the mine The judgment is reversed, with directions

boss and waiting for repairs, as authorized by

statute (Burns' Ann. St. 1901, 8 7472), he asto sustain appellant's demurrer to the second

sumes the risk of injury, is properly refused, paragraph of complaint.

since such failure would affect the question of contributory negligence, rather than of assump

tion of risk. (166 Ind. 290)



Where the superintendent of a mine testiBERTSON. (No. 20,567.)

fied that he made out bills in the name of K.

and operated the mine under his orders, and (Supreme Court of Indiana. March 15, 1906.)

was asked what conversation he had with K. 1. MASTER AND SERVANT-ACTION FOR INJUR as to furnishing men to a machinist, an obIES TO SERVANT-PLEADING.

jection on the ground that any conversation In an action for injuries to a coal miner, with the machinist would not bind the owner where the complaint alleged that the miner, of the mine was properly overruled; the quesunder the direction of his employer given

tion referring to a conversation with K., and through its mine boss, entered a certain part of not with the machinist. the mine, and while he was working there in 9. SAME-MOTIONS TO STRIKE OUT EVIDENCE. the line of his duty the roof gave way, causing Where an answer was not responsive to his injuries, a motion to compel the plaintiff a question objected to, the party objecting to make the complaint more specific and allege

should move to strike it out. the particular kind of work on which the ininer

[Ed. Note.-For cases in point, see vol. 46, was engaged and the manner in which he

Cent. Dig. Trial, § 238.) was performing it was properly denied. 2. SAME-ASSUMPTION OF RISK-NOTICE.

On rehearing. Modified and affirmed In an action for injuries to a cral miner For former opinion, see 73 N. E. 818. from the falling of a part of the roof of the mine, where the complaint alleges that the em

JORDAN, J. This was an action instiployer knew of the dangerous condition and the miner had no knowledge of it, no assumption

tuted by appellee against appellant to reof risk is shown; further allegations that he cover damages for personal injuries sushad no means or opportunity of ascertaining tained while in the employ of the latter as the defects being unnecessary.

a coal miner. The cause was tried upon [Ed. Note. For cases in point, see vol. 34,

an amended complaint consisting of three Cent. Dig. Master and Servant, § 846.)

paragraphs, the first and second of which 3. SAME-VIOLATION OF STATUTE.

are based on section 7473, Burns' Ann, St. A coal miner does not assume the risk of injuries resulting from his employer's dis

1901, being section 13 of the act relating regard or violation of the statute relating to to coal mines. This section declares a liacoal mines.

bility against the owner, operator, agent, [Ed. Note.-For cases in point, see vol. 34, or lessee of a coal mine for any injury to Cent. Dig. Master and Seryant, 88 515, 557.)

person or property occasioned by any vio 4. SAME-DUTY OF MASTER-SAFE PLACE TO lation of this act, or for any willful failure WORK.

to comply with its provisions. The comWhere a coal miner was directed to work in a certain place, he had the right, in the

plaint may be summarized as follows: The absence of knowledge to the contrary, to assume first paragraph alleges that the defendant that the place had been made safe by his coal company is a corporation duly organemployer.

ized, etc., and is engaged in mining coal (Ed. Note.-For cases in point, see vol. 34, in Clay county, Ind., by means of shafts, Cent. Dig. Master and Servant, 88 675–077.)

etc.; a description of the method of operation 5. SAME-CONTRIBUTORY NEGLIGENCE-QUES being stated. Said defendant, at and prior TION FOR JURY,

to the time of the injury in question, had Where a coal miner was injured by the falling of a stone from the roof of the mine

in its employ over 100 men, including the a short time after the removal of another stone | plaintiff herein. It was the duty of the de from the roof about five feet from the one fendant to use reasonable care and diligence causing the injury, but the evidence was con

in furnishing the plaintiff with a safe place flicting as to whether the fall of one was caused by the removal of the other, and whether the

in which to perform his work. It was also miner knew of the unsafe condition of the one its duty under the statute to employ a compecausing the injury, the question of his con tent mine boss. It was the latter's duty to tributory negligence was for the jury.

visit and examine every working place in [Ed. Note.--For cases in point, see vol. 34. Cent. 'Dig. Master and Servant, $8 1088-1132.]

defendant's mine on every alternate day,

and to examine and see that every such 6. NEGLIGENCE-BURDEN OF PROOF. Under Burns' Ann. St. 1901, $ 359a,

place was properly secured by props and providing that it shall not be necessary for a

timber, and that the safety of the mine plaintiff to prove want of contributory negli was thereby secured. It was the further gence, but it shall be a matter of defense, the duty of the mine boss to see that a sufficient burden of proving contributory negligence is

supply of props and timber was always on on the defendant. [Ed. Note. For cases in point, see vol. 37,

hand. It is charged that the defendant Cent. Dig. Negligence, 88 229-234.].

failed and neglected to perform its said duty,

and that its mine boss failed to visit the, the employé may sustain by reason of such working places of said mine on each alter- defect. After setting forth the defective nate day while plaintiff was employed at condition of the roof of the room of the mine said mine; that said boss failed to see that where the plaintiff was injured as alleged said working places were properly secured in the first and second paragraphs, it charges by props and timber so as to render said that the defendant had full knowledge of working places safe, and that he did not such defects, and that the loose and unsafe see that a sufficient supply of props and condition of the roof could have been easily timber was always on hand as required. ascertained by inspection, but was of such Three days prior to the time when the plain a character as to show no outward defects tiff sustained the injury complained of the or indications of its unsafe condition, and said mine boss visited the working place was of such a character as the plaintiff was wherein plaintiff was at work when he liable to overlook and not discover; that by sustained the injury complained of, and he reason thereof it became and was the duty found the roof overhanging said place loose of the defendant to notify the plaintiff thereand cracked and in an unsafe condition; of; that neither the defendant nor any one that he found that said roof was not proper else notified the plaintiff of the defects in ly secured by props and timbers, and was said roof, nor did he, at the time he susliable to "fall and cave in," but, notwith-| tained said injury or prior thereto, have any standing the fact that the defendant had knowledge or notice of the defects in said full knowledge of the unsafe and dangerous roof, or of its unsafe condition; that of condition of said working place, it negli- these defects and unsafe condition the degently and carelessly permitted and directed fendant had full knowledge, and, well knowthat the plaintiff should perform his work ing that the plaintiff was wholly ignorant therein. Pursuant to said direction of the thereof, appellant did on the 13th day of defendant, given through its mine boss, February, 1900, direct the plaintiff to enter plaintiff did on February 13, 1900, enter said room and working place to perform his said working place, and while he was en work, all of which the plaintiff did in total gaged at work therein in the service of ignorance of its unsafe condition, etc. Then the defendant and in the line of his duty follow the same allegations as to due care the roof thereof, without notice or warning, and absence of contributory negligence on by reason of said defects, gave way, caved the part of the plaintiff as alleged and conin, and fell upon appellee, to his injury tained in the first and second paragraphs. and damage, etc. It is also alleged that The appellant moved the lower court to at and prior to his sustaining said injury he compel the appellee to make his complaint was ignorant of the unsafe condition of more specific, in this: “That he be required the working place in question, and had no to state in each paragraph the particular knowledge of its said condition and no notice kind of work upon which he was engaged or knowledge of the dangers and perils and the manner in which he was performthereof. There was nothing in the appear ing said work at the time the alleged injury ance of the slate or stone which fell from occurred." This motion the court denied. the roof upon him to indicate any immediate Thereupon appellant unsuccessfully demurdanger of its falling; that the same could red to each paragraph of the complaint. have been secured by props and timbers, The answer was a general denial. The case and said working place could have been was tried by a jury, and a general verdict made safe and secure by the defendant if | returned in favor of appellee, assessing his proper timbers had been supplied for that damages at $7,500. Over appellant's motion purpose. It is a verred that the plaintiff was for a new trial, judgment was rendered on in the exercise of due care, and that the the verdict. The assignments of error hereinjury which he sustained was caused by in are predicated upon the rulings of the the fault and negligence of defendants. court in denying the motion to make the The second paragraph contains all of the complaint more specific, and in overruling material allegations of the first, and in the demurrer to each paragraph of the comaddition avers that it was the duty of the plaint, and denying the motion for a new defendant to furnish a "bank boss" to see trial. that all working places were made safe; The motion to make the complaint more that, while it did have such bank boss in specific was properly denied. It will be obits employ, he failed and neglected to do served that appellant thereby moved the bis duty, etc. The third paragraph declares court to require appellee to state in his upon the common-law liability of the master, pleading the kind of work in which he was and proceeds upon the theory that when the engaged at the time of the accident, and latter has knowledge of a defect in the the manner in which he was performing the working place of his employé which renders same at the time he was injured. As to it unsafe, and where such defect is of a these matters appellant was sufficiently adcharacter that it may escape the notice or vised by the complaint. The allegations observation of the employé, it is the duty of thereof cannot be said to be so indefinite or the master to notify the latter, and, failing | uncertain as to fail to inform appellant of the to do so, he is liable for any injury which charge in question. The averments are sufficiently definite and certain as to apprise ap- of a complaint under the statute in question pellant of what it was required to meet and on this feature of the case, see Daris Coal thereby be enabled to prepare for its defense. Co. v. Polland, supra. Illinois, etc., R. Co. v. Cheek, 152 Ind. 663, 53 As a general rule, in the absence of any N. E. 641.

knowledge or notice to the contrary, a sery. It is next contended that neither paragraph ant is justified in relying upon the assumpof the complaint is sufficient to withstand tion that the master has discharged his duty the demurrer. The reasons in the main as under the law, and has exercised reasonable serted in support of this contention are: (1) care in furnishing and maintaining a safe It is not shown that appellee made an inspec working place, and within reasonable limits tion or careful observation of the premises he may act upon such assumption. The law wherein he was engaged at work at the time exacts of the servant the use of his faculties he sustained the injury. (2) Each paragraph and senses in ascertaining whether danger of the complaint discloses that appellee as actually exists, where the same is obvious sumed the risk of the unsafe condition of the or open to view ; but, in the absence of apparplace in which he was engaged at work at ent or known defects or perils in the place the time of the accident. There are no facts where he works, he is not bound to make an exbibited by either paragraph of the com- inspection thereof or search therein in order plaint to justify this contention. Each of to discover whether such place is safe or them discloses that appellant knew of the de unsafe. Baltimore, etc., V. Roberts, supra; fects or unsafe condition or perils of the Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210; premises in question, but an absence of such Island Coal Co. v. Risher, 13 Ind. App. 98, knowledge on the part of appellee is positive- 40 N. E. 158. Obvious defects or perils such ly averred. It was not essential that the as are open to an ordinarily careful observapleading, in addition to negativing know tion are regarded by the law as perils inledge on appellee's part, should go further cident to the service, but latent defects are and allege that he had no means or oppor- those not discoverable by the exercise of tunity of discovering or ascertaining the de reasonable care, are not considered as risks fects or dangers of the place in controversy. incident to the employment, and therefore The averment that he had no knowledge of are never assumed by the servant. Wabash, the unsafe or dangerous condition of the etc., R. R. Co. v. Morgan, 132 Ind. 430, 31 place in question is sufficient, as a matter of N. E. 661, 32 N. E. 85. When appellee, as pleading, to show not only an absence of ac- the facts in the complaint disclose, was tual knowledge, but also that of implied or directed by appellant to work in the place constructive notice or knowledge on appellee's | in controversy, he had the right, in the abpart. Baltimore, etc., R. Co. v. Roberts, 161 sence of any knowledge to the contrary, to Ind. 1, 67 N. E. 530, and authorities there assume that such place had been made safe cited. That by the common law a servant by appellant as exacted by law. Rogers under his contract of employment impliedly V. Leyden, supra. Appellant, both at comassumes all of the risks incident to the sery mon law and under the statute in quesice in which he engages is a well-settled prin tion, was required to keep the apartment of ciple under the law pertaining to master and its coal mine where appellee was assigned to servant. But such assumption does not in work, and the roof thereof, in at least a clude or embrace the hazard of extraordi- ! reasonably safe condition. This was a connary risks which are the result of the negli- tinuing duty resting upon it, and one which gence of the master in failing to perform the it could not delegate so as to escape liability duties enjoined upon him by law. In this for a failure to discharge it. Island Coal case, so far as appellee's right of action is Co. v. Risher, supra; Davis Coal Co. y. Polbased upon the statute concerning coal mines, land, supra. Each paragraph of the comit cannot be said that he assumed the risks plaint states facts sufficient to show negliarising from appellant's disregard or viola gence on appellant's part which resulted in tion of its statutory duties. Davis Coal Co. v. the injury of which appellee complains. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. i There are no facts in either paragraph of the Rep. 319, and cases there cited ; Island Coal Co. pleading in question tending to show that v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. appellee was guilty of contributory negliE. 1026. Ordinarily it is necessary, in a gence, and it is sufficiently disclosed that be complaint by a servant to recover from the did not voluntarily assume the unsafe condimaster for an injury sustained by reason tion of the premises as one of the risks of of an unsafe working place, to therein nega- | the service in which he was engaged. There tive knowledge on his part of the unsafe was no error in overruling the demurrer to condition of the premises in question. This each of the paragraphs in controversy. is essential in order to show that such sery Counsel for appellant next insist that the ant did not voluntarily assume the dangers evidence shows that appellee was guilty of and perils complained of as one of the risks negligence which contributed to the injury of the employment in which he was engaged. which he received. They concede that there Indiana, etc., Co. v. O'Brien, 160 Ind. 266, 65 | is evidence tending to establish that appelN. E. 918, 66 N. E. 742, and authorities there | lant was negligent as charged in the comcited. In respect, however, to the sufficiency plaint. They do not ask that we weigh the evidence, but that we consider the testimony , question was mined by the use of machines. given by appellee as a witness on the trial, Appellant obtained the latter from a firm in and then apply the law to the facts sworn to Chicago, and this firm appears to have sent by him, and thereby determine the question a Mr. O'Brien to the mine for the purpose of his contributory negligence. It is a well of teaching appellant's employés how to opsettled rule of appellate procedure that in erate the machines. O'Brien appears to determining the sufficiency of the evidence to have had charge of the machines for this support the judgment below, this court will purpose, and appellant's superintendent inconsider only the evidence in the record structed the mine boss to furnish bim with which is most favorable to an appellee. In all the men he required to run the machines. order to authorize us on appeal to disturb on February 13, 1900, O'Brien reported that the judgment of the trial court on the evi. | he was short two machine runners. He apdence alone, it must appear that the evidence plied to the mine boss for instructions, and in the case is such as to raise or present for was informed by the latter that rooms 1 and our decision not merely a question of fact, 2 were ready for the machines. It was not but one purely of law on some material issue, the duty of the men who worked at the and that such question of law under the machines to put the rooms in condition for judgment of the trial court was decided er the use thereof. This duty was performed roneously. Carver v. Forry, 158 Ind. 76, by the mine boss and the men under his 62 N. E. 697, and cases cited; Creamery, etc., charge. Among others, it was the duty of Co. v. Hotzenpiller, 159 Ind. 99, 64 N. E. , the mine boss, under the statute, to see that 600; Republic, etc., Co. v. Berkes, 162 Ind. all loose stone and slate in any of the rooms 517, 70 N. E. 815. The fact that the evidence were taken down or propped by means of in the case on some particular and material timbers before the men were permitted to issue appears to be weak or unsatisfactory enter therein to work with the machines, is not alone sufficient to warrant this court in and also to see “that a sufficient supply of disturbing the judgment. Republic, etc., Co. props and timber are always on hand at the V. Berkes, supra.

miners' working places.” Three days before Guided by these well-established rules, we the occurrence of the accident in question pass to the consideration of the evidence in the mine boss visited and inspected the the case at bar. There is evidence in the roof of No. 2. When he tapped or struck record to prove the following facts: Appel the roof with a pick a dull sound was emitlant is a duly organized corporation, and as ted, which indicated that the roof was broken such was, on the 13th day of February, 1900, and was giving way. The mine boss stated engaged in the business of mining coal in on the trial that he did not think it was Clay county, Ind. The mining was carried dangerous, but admitted that he did not know on by means of sinking a shaft to the coal that the room was in as bad a condition as bed, and then driving entries or roadways it was actually shown to be. He knew that through the coal from the bottom of the room No. 2 was unsafe, that the roof thereof shaft, from which excavations or rooms were was not propped, and that no props or timber made on either side. The coal was mined had been supplied to make the room safe and transported through these entries to the so far as it could be made by propping. No bottom of the shaft, and then hoisted to the notice or warning was given by appellant surface. On said 13th day of February, to appellee before he entered the room in 1900, and prior thereto, appellant, in con question in respect to the unsafe condition ducting its said business, had in its employ of the roof. The mine boss admitted at the a large number of men, among whom was trial that, without any knowledge in respect appellee. One of the entries of said mines to the condition of the roof in question on the ran east and west and turned off to the north part of appellee, he sent him into said room into apartments or excavations, called rooms, to assist in operating one of the machines. among which were rooms known as “No. 1" He admitted that he supposed this room and "No. 2.On and prior to said 13th day was ready and in a condition for work, withof February, appellant had in its service out any knowledge as to such facts. The John Cuthbertson, who acted as its mine condition of the stone in the roof of room 2, boss under the provisions of the coal-mining which is shown to have been the result of statute in controversy. The entry of rooms the injury to appellee, was of such a char1 and 2 before Cuthbertson became mine boss acter that under the circumstances it could had for some time been full of water. After have been easily overlooked by appellee, and he became the mine boss for appellant he have escaped his observation. There is eviwas ordered to clear out the water and put dence to show that the mine boss neglected men to work in this entry. The room in the duty enjoined upon him by the statute which appellee was injured as hereinafterin failing to visit the room in controversy shown was known as “No. 2." It was about | and to see that it was made safe, and also 28 feet wide and 35 feet long. It was 35 in failing to see that props and timber were yards from the face of the coal in this room at hand at said working place as required by to the entry. A roadway was on the east the statute. It appears that he employed a side of the room in question. The coal in ap- Mr. Ab Miller to place rooms 2 and 3 in order pellant's mine at and prior to the accident in for the men to operate tbe machines. Miller, as it appears, put room 3 in order, but, as | sledge hammer was used to removing the the mine boss stated at the trial, he "skipped stone in question the evidence is conflicting; out" without doing anything towards placing appellee testifying that no sledge or wedgas room 2 in order. The mine boss, prior to were used for that purpose. Some two minthe injury received by appellee, had under utes or over after the stone had been pulled his charge the inspection of some eight en down, a stone weighing about 150 pounds, tries, together with the rooms which turned in another part of the roof of the room in off from these entries; five of the entries question, ive feet or more from the one which being in the lower vein, and three in the had been removed from the roof, fell upon upper vein, and room No. 2 being in the latter appellee, thereby severely injuring him. vein. The mine boss, on finding that he was This latter stone had no connection with the unable to properly inspect and look after the one that had been previously pulled down. safety of the entries and rooms which had Appellee was only in the room a few minutes been placed under his charge, applied to the before he was injured in the manner stated superintendent and manager of appellant's At the time he sustained the injury he was mine for help, and requested that he be in good health and was sound in body. He furnished with what is known as an "entry I was between 22 and 23 years old, and had boss.” The superintendent refused this re a wife and one child. He earned about $2.50 quest, on the ground that it would be too per day by working in and about the mine. expensive to employ a man for this purpose. As a result of the injury he is permanently Prior to the time appellee was injured he disabled and is shown to be a "physical had worked in coal mines for about five wreck." His urinary organs and limbs are years; a part of the time serving as what he | paralyzed, and he is unable to work, and candenominated as a "roustabout." He had had not stand on his feet except when supported about two or three months' experience as a by crutches. That appellant is shown by helper in operating machines. The machines the evidence in the case to be guilty of negli. at appellant's mine were run by electricity, gence both at common law and under the and when operated they were moved from the statute in question is beyond successful conleft to the right, and as the work of cutting troversy. the coal progressed the apartments of the Counsel argue that under the evidence ft mine in which they were operated were prop appears that appellee, together with Miller, ped or timbered by the men who ran the his associate, was engaged at the time he machines. Appellant's mine boss is sbown by was injured in voluntarily making a danger. the evidence to have neglected to furnish ous place safe. Therefore it is insisted that props for room No. 2. If he had discharged he had knowledge of the danger, and conhis duty in this respect, there is evidence to sequently assumed the risk. Appellant's prove that the stone which fell on appellee theory is that the injury in question resulted and injured him, as hereinafter shown, could from the fact that Miller and appellee, after have been propped and thereby supported entering room No. 2, removed from the roof without interfering with the operations of thereof what may be denominated for conthe machines.

venience as "stone No. 1." If there were On February 13, 1900, appellee was directed undisputed evidence in the record to establish to go to work in rooms 1 and 2 as a helper this contention, we would have quite a dirto one Marion Miller. Miller was an experi ferent question presented for our decision; but enced miner, and had worked in coal mines as heretofore stated, there is evidence to show for about 18 years. On the aforesaid day that the stone which was removed and the Miller and appellee first moved the machine one wbich caused the injury were five feet into room No. 1. They finished the work or over away, separate and apart, and that therein about noon, and, after eating dinner they had no connection whatever with each in the entry, they moved the machine into other. Because the stone which may be de room No. 2. Appellee had never before been nominated "No. 2" fell and injured appellee in the latter room, and knew nothing what in about two minutes after No. 1 was reever in regard to its condition. After he and moved, it is contended that from this fact Miller had entered they discovered a large stone it necessarily follows, or must be inferred over the roadway Miller made an examina- | that the removal of the first stone caused or tion and decided that the "stone was a bad produced the fall of the other. As to wheth. one," and that it must be taken down, as er the latter fact might be inferred or dethere were no props on hand by which it could duced from other giren facts in the case was be propped. Appellee at the trial testified purely a question for the jury, and not one that, knowing that Miller, the man with for the determination of this court There whom he was to act as a helper in operating is evidence to prove that there was nothing the machine, was an experienced miner and in the appearance of the stone which fell older than himself, he believed that what and injured appellee to indicate to him that Miller said should be done under the circum there was any danger of its falling. It is stances was all right. It appears that Mile | true that it may be said that, from the apler by the means of a pick and crowbar, pearance and condition of the stone which helped and aided by appellee, succeeded in he and his associate, Miller, removed, and pulling the stone down. As to whether a / from what Miller said in respect to its being

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