of complaint insufficient, and the court erred in not sustaining the demurrer thereto for want of facts. This error requires the reversal of the judgment, without consideration of the ruling on the motion for a new trial.

The judgment is reversed, with directions to sustain appellant's demurrer to the second paragraph of complaint.

(166 Ind. 290)

DIAMOND BLOCK COAL CO. v. CUTHBERTSON. (No. 20,567.)

(Supreme Court of Indiana. March 15, 1906.) 1. MASTER and Servant-ACTION FOR InjurIES TO SERVANT-PLEADING.

In an action for injuries to a coal miner, where the complaint alleged that the miner, under the direction of his employer given through its mine boss, entered a certain part of the mine, and while he was working there in the line of his duty the roof gave way, causing his injuries, a motion to compel the plaintiff to make the complaint more specific and allege the particular kind of work on which the miner was engaged and the manner in which he was performing it was properly denied. 2. SAME ASSUMPTION OF RISK-NOTICE.

In an action for injuries to a coal miner from the falling of a part of the roof of the mine, where the complaint alleges that the employer knew of the dangerous condition and the miner had no knowledge of it, no assumption of risk is shown; further allegations that he had no means or opportunity of ascertaining the defects being unnecessary.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 846.] 3. SAME-VIOLATION OF Statute.

A coal miner does not assume the risk of injuries resulting from his employer's disregard or violation of the statute relating to coal mines.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 345, 557.] · 4. SAME-DUTY OF MASTER-SAFE PLACE TO WORK.

Where a coal miner was directed to work in a certain place, he had the right, in the absence of knowledge to the contrary, to assume that the place had been made safe by his employer.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 675-677.] 5. SAME CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

Where a coal miner was injured by the falling of a stone from the roof of the mine a short time after the removal of another stone from the roof about five feet from the one causing the injury, but the evidence was conflicting as to whether the fall of one was caused by the removal of the other, and whether the miner knew of the unsafe condition of the one causing the injury, the question of his contributory negligence was for the jury.

[Ed. Note. For cases in point. see vol. 34. Cent. Dig. Master and Servant, §§ 1088-1132.] 6. NEGLIGENCE-BURDEN OF PROOF.

Under Burns' Ann. St. 1901, § 359a, providing that it shall not be necessary for a plaintiff to prove want of contributory negligence, but it shall be a matter of defense, the burden of proving contributory negligence is on the defendant.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 229-234.]·

7. MASTER AND SERVANT-INJURY TO SERVANT-ASSUMPTION OF RISK-INSTRUCTION. An instruction that where a coal miner learns of the unsafe condition of the mine by reason of an overhanging stone, and continues to work there without notifying the mine boss and waiting for repairs, as authorized by statute (Burns' Ann. St. 1901, § 7472), he assumes the risk of injury, is properly refused, since such failure would affect the question of contributory negligence, rather than of assumption of risk.

8. TRIAL-RECEPTION OF EVIDENCE-OBJEC

TIONS.

Where the superintendent of a mine testified that he made out bills in the name of K. and operated the mine under his orders, and was asked what conversation he had with K. as to furnishing men to a machinist, an objection on the ground that any conversation with the machinist would not bind the owner of the mine was properly overruled: the question referring to a conversation with K., and not with the machinist.

9. SAME-MOTIONS TO STRIKE OUT EVIDENCE. Where an answer was not responsive to a question objected to, the party objecting should move to strike it out.

[Ed. Note. For eases in point, see vol. 46, Cent. Dig. Trial, § 238.]

On rehearing. Modified and affirmed.
For former opinion, see 73 N. E. 818.

JORDAN, J. This was an action instituted by appellee against appellant to recover damages for personal injuries sustained while in the employ of the latter as a coal miner. The cause was tried upon an amended complaint consisting of three paragraphs, the first and second of which are based on section 7473, Burns' Ann. St. 1901, being section 13 of the act relating to coal mines. This section declares a liability against the owner, operator, agent, or lessee of a coal mine for any injury to person or property occasioned by any violation of this act, or for any willful failure to comply with its provisions. The complaint may be summarized as follows: The first paragraph alleges that the defendant coal company is a corporation duly organized, etc., and is engaged in mining coal in Clay county, Ind., by means of shafts, etc.; a description of the method of operation being stated. Said defendant, at and prior to the time of the injury in question, had in its employ over 100 men, including the plaintiff herein. It was the duty of the defendant to use reasonable care and diligence in furnishing the plaintiff with a safe place in which to perform his work. It was also its duty under the statute to employ a competent mine boss. It was the latter's duty to visit and examine every working place in defendant's mine on every alternate day, and to examine and see that every such place was properly secured by props and timber, and that the safety of the mine was thereby secured. It was the further duty of the mine boss to see that a sufficient supply of props and timber was always on hand. It is charged that the defendant failed and neglected to perform its said duty,

and that its mine boss failed to visit the working places of said mine on each alternate day while plaintiff was employed at said mine; that said boss failed to see that said working places were properly secured by props and timber so as to render said working places safe, and that he did not see that a sufficient supply of props and timber was always on hand as required. Three days prior to the time when the plaintiff sustained the injury complained of the said mine boss visited the working place wherein plaintiff was at work when he sustained the injury complained of, and he found the roof overhanging said place loose and cracked and in an unsafe condition; that he found that said roof was not properly secured by props and timbers, and was liable to "fall and cave in," but, notwithstanding the fact that the defendant had full knowledge of the unsafe and dangerous condition of said working place, it negligently and carelessly permitted and directed that the plaintiff should perform his work therein. Pursuant to said direction of the defendant, given through its mine boss, plaintiff did on February 13, 1900, enter said working place, and while he was engaged at work therein in the service of the defendant and in the line of his duty the roof thereof, without notice or warning, by reason of said defects, gave way, caved in, and fell upon appellee, to his injury and damage, etc. It is also alleged that at and prior to his sustaining said injury he was ignorant of the unsafe condition of the working place in question, and had no knowledge of its said condition and no notice or knowledge of the dangers and perils thereof. There was nothing in the appearance of the slate or stone which fell from the roof upon him to indicate any immediate danger of its falling; that the same could have been secured by props and timbers, and said working place could have been made safe and secure by the defendant if proper timbers had been supplied for that purpose. It is averred that the plaintiff was in the exercise of due care, and that the injury which he sustained was caused by the fault and negligence of defendants. The second paragraph contains all of the material allegations of the first, and in addition avers that it was the duty of the defendant to furnish a "bank boss" to see that all working places were made safe; that, while it did have such bank boss in its employ, he failed and neglected to do his duty, etc. The third paragraph declares upon the common-law liability of the master, and proceeds upon the theory that when the latter has knowledge of a defect in the working place of his employé which renders it unsafe, and where such defect is of a character that it may escape the notice or observation of the employé, it is the duty of the master to notify the latter, and, failing to do so, he is liable for any injury which

the employé may sustain by reason of such defect. After setting forth the defective condition of the roof of the room of the mine where the plaintiff was injured as alleged in the first and second paragraphs, it charges that the defendant had full knowledge of such defects, and that the loose and unsafe condition of the roof could have been easily ascertained by inspection, but was of such a character as to show no outward defects or indications of its unsafe condition, and was of such a character as the plaintiff was liable to overlook and not discover; that by reason thereof it became and was the duty of the defendant to notify the plaintiff thereof; that neither the defendant nor any one else notified the plaintiff of the defects in said roof, nor did he, at the time he sustained said injury or prior thereto, have any knowledge or notice of the defects in said roof, or of its unsafe condition; that of these defects and unsafe condition the defendant had full knowledge, and, well knowing that the plaintiff was wholly ignorant thereof, appellant did on the 13th day of February, 1900, direct the plaintiff to enter said room and working place to perform his work, all of which the plaintiff did in total ignorance of its unsafe condition, etc. Then follow the same allegations as to due care and absence of contributory negligence on the part of the plaintiff as alleged and contained in the first and second paragraphs. The appellant moved the lower court to compel the appellee to make his complaint more specific, in this: "That he be required to state in each paragraph the particular kind of work upon which he was engaged and the manner in which he was performing said work at the time the alleged injury occurred." This motion the court denied. Thereupon appellant unsuccessfully demurred to each paragraph of the complaint. The answer was a general denial. The case was tried by a jury, and a general verdict returned in favor of appellee, assessing his damages at $7,500. Over appellant's motion for a new trial, judgment was rendered on the verdict. The assignments of error herein are predicated upon the rulings of the court in denying the motion to make the complaint more specific, and in overruling the demurrer to each paragraph of the complaint, and denying the motion for a new trial.

The motion to make the complaint more specific was properly denied. It will be observed that appellant thereby moved the court to require appellee to state in his pleading the kind of work in which he was engaged at the time of the accident, and the manner in which he was performing the same at the time he was injured. As to these matters appellant was sufficiently advised by the complaint. The allegations thereof cannot be said to be so indefinite or uncertain as to fail to inform appellant of the charge in question. The averments are suf

ficiently definite and certain as to apprise appellant of what it was required to meet and thereby be enabled to prepare for its defense. Illinois, etc., R. Co. v. Cheek, 152 Ind. 663, 53 N. E. 641.

It is next contended that neither paragraph of the complaint is sufficient to withstand the demurrer. The reasons in the main asserted in support of this contention are: (1) It is not shown that appellee made an inspection or careful observation of the premises wherein he was engaged at work at the time he sustained the injury. (2) Each paragraph of the complaint discloses that appellee assumed the risk of the unsafe condition of the place in which he was engaged at work at the time of the accident. There are no facts exhibited by either paragraph of the complaint to justify this contention. Each of them discloses that appellant knew of the defects or unsafe condition or perils of the premises in question, but an absence of such knowledge on the part of appellee is positively averred. It was not essential that the pleading, in addition to negativing knowledge on appellee's part, should go further and allege that he had no means or opportunity of discovering or ascertaining the defects or dangers of the place in controversy. The averment that he had no knowledge of the unsafe or dangerous condition of the place in question is sufficient, as a matter of pleading, to show not only an absence of actual knowledge, but also that of implied or constructive notice or knowledge on appellee's part. Baltimore, etc., R. Co. v. Roberts, 161 Ind. 1, 67 N. E. 530, and authorities there cited. That by the common law a servant under his contract of employment impliedly assumes all of the risks incident to the service in which he engages is a well-settled principle under the law pertaining to master and servant. But such assumption does not include or embrace the hazard of extraordinary risks which are the result of the negligence of the master in failing to perform the duties enjoined upon him by law. In this case, so far as appellee's right of action is based upon the statute concerning coal mines, it cannot be said that he assumed the risks arising from appellant's disregard or violation of its statutory duties. Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319, and cases there cited; Island Coal Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103, 65 N. E. 1026. Ordinarily it is necessary, in a complaint by a servant to recover from the master for an injury sustained by reason of an unsafe working place, to therein negative knowledge on his part of the unsafe condition of the premises in question. This is essential in order to show that such servant did not voluntarily assume the dangers and perils complained of as one of the risks of the employment in which he was engaged. Indiana, etc., Co. v. O'Brien, 160 Ind. 266, 65 N. E. 918, 66 N. E. 742, and authorities there cited. In respect, however, to the sufficiency

of a complaint under the statute in question on this feature of the case, see Davis Coal Co. v. Polland, supra.

As a general rule, in the absence of any knowledge or notice to the contrary, a servant is justified in relying upon the assumption that the master has discharged his duty under the law, and has exercised reasonable care in furnishing and maintaining a safe working place, and within reasonable limits he may act upon such assumption. The law exacts of the servant the use of his faculties and senses in ascertaining whether danger actually exists, where the same is obvious or open to view; but, in the absence of apparent or known defects or perils in the place where he works, he is not bound to make an inspection thereof or search therein in order to discover whether such place is safe or unsafe. Baltimore, etc., v. Roberts, supra; Rogers v. Leyden, 127 Ind. 50, 26 N. E. 210; Island Coal Co. v. Risher, 13 Ind. App. 98, 40 N. E. 158. Obvious defects or perils such as are open to an ordinarily careful observation are regarded by the law as perils incident to the service, but latent defects are those not discoverable by the exercise of reasonable care, are not considered as risks incident to the employment, and therefore are never assumed by the servant. Wabash, etc., R. R. Co. v. Morgan, 132 Ind. 430, 31 N. E. 661, 32 N. E. 85. When appellee, as the facts in the complaint disclose, was directed by appellant to work in the place in controversy, he had the right, in the absence of any knowledge to the contrary, to assume that such place had been made safe by appellant as exacted by law. Rogers v. Leyden, supra. Appellant, both at common law and under the statute in question, was required to keep the apartment of its coal mine where appellee was assigned to work, and the roof thereof, in at least a reasonably safe condition. This was a continuing duty resting upon it, and one which it could not delegate so as to escape liability for a failure to discharge it. Island Coal Co. v. Risher, supra; Davis Coal Co. v. Polland, supra. Each paragraph of the complaint states facts sufficient to show negligence on appellant's part which resulted in the injury of which appellee complains. There are no facts in either paragraph of the pleading in question tending to show that appellee was guilty of contributory negligence, and it is sufficiently disclosed that he did not voluntarily assume the unsafe condition of the premises as one of the risks of the service in which he was engaged. There was no error in overruling the demurrer to each of the paragraphs in controversy.

Counsel for appellant next insist that the evidence shows that appellee was guilty of negligence which contributed to the injury which he received. They concede that there is evidence tending to establish that appellant was negligent as charged in the complaint. They do not ask that we weigh the

evidence, but that we consider the testimony given by appellee as a witness on the trial, and then apply the law to the facts sworn to by him, and thereby determine the question of his contributory negligence. It is a wellsettled rule of appellate procedure that in determining the sufficiency of the evidence to support the judgment below, this court will consider only the evidence in the record which is most favorable to an appellee. In order to authorize us on appeal to disturb the judgment of the trial court on the evidence alone, it must appear that the evidence in the case is such as to raise or present for our decision not merely a question of fact, but one purely of law on some material issue, and that such question of law under the judgment of the trial court was decided erroneously. Carver v. Forry, 158 Ind. 76, 62 N. E. 697, and cases cited; Creamery, etc., Co. v. Hotzenpiller, 159 Ind. 99, 64 N. E. 600; Republic, etc., Co. v. Berkes, 162 Ind. 517, 70 N. E. 815. The fact that the evidence in the case on some particular and material issue appears to be weak or unsatisfactory is not alone sufficient to warrant this court in disturbing the judgment. Republic, etc., Co. v. Berkes, supra.

Guided by these well-established rules, we pass to the consideration of the evidence in the case at bar. There is evidence in the record to prove the following facts: Appellant is a duly organized corporation, and as such was, on the 13th day of February, 1900, engaged in the business of mining coal in Clay county, Ind. The mining was carried on by means of sinking a shaft to the coal bed, and then driving entries or roadways through the coal from the bottom of the shaft, from which excavations or rooms were made on either side. The coal was mined and transported through these entries to the bottom of the shaft, and then hoisted to the surface. On said 13th day of February, 1900, and prior thereto, appellant, in conducting its said business, had in its employ a large number of men, among whom was appellee. One of the entries of said mines ran east and west and turned off to the north into apartments or excavations, called rooms, among which were rooms known as "No. 1" and "No. 2." On and prior to said 13th day of February, appellant had in its service John Cuthbertson, who acted as its mine boss under the provisions of the coal-mining statute in controversy. The entry of rooms 1 and 2 before Cuthbertson became mine boss had for some time been full of water. After he became the mine boss for appellant he was ordered to clear out the water and put men to work in this entry. The room in which appellee was injured as hereinafter shown was known as "No. 2." It was about 28 feet wide and 35 feet long. It was 35 yards from the face of the coal in this room to the entry. A roadway was on the east side of the room in question. The coal in appellant's mine at and prior to the accident in

question was mined by the use of machines. Appellant obtained the latter from a firm in Chicago, and this firm appears to have sent a Mr. O'Brien to the mine for the purpose of teaching appellant's employés how to operate the machines. O'Brien appears to have had charge of the machines for this purpose, and appellant's superintendent instructed the mine boss to furnish him with all the men he required to run the machines. On February 13, 1900, O'Brien reported that he was short two machine runners. He applied to the mine boss for instructions, and was informed by the latter that rooms 1 and 2 were ready for the machines. It was not the duty of the men who worked at the machines to put the rooms in condition for the use thereof. This duty was performed by the mine boss and the men under his charge. Among others, it was the duty of the mine boss, under the statute, to see that all loose stone and slate in any of the rooms were taken down or propped by means of timbers before the men were permitted to enter therein to work with the machines, and also to see "that a sufficient supply of props and timber are always on hand at the miners' working places." Three days before the occurrence of the accident in question the mine boss visited and inspected the roof of No. 2. When he tapped or struck the roof with a pick a dull sound was emitted, which indicated that the roof was broken and was giving way. The mine boss stated on the trial that he did not think it was dangerous, but admitted that he did not know that the room was in as bad a condition as it was actually shown to be. He knew that room No. 2 was unsafe, that the roof thereof was not propped, and that no props or timber had been supplied to make the room safe so far as it could be made by propping. No notice or warning was given by appellant to appellee before he entered the room in question in respect to the unsafe condition of the roof. The mine boss admitted at the trial that, without any knowledge in respect to the condition of the roof in question on the part of appellee, he sent him into said room to assist in operating one of the machines. He admitted that he supposed this room was ready and in a condition for work, without any knowledge as to such facts. The condition of the stone in the roof of room 2, which is shown to have been the result of the injury to appellee, was of such a character that under the circumstances it could have been easily overlooked by appellee, and have escaped his observation. There is evidence to show that the mine boss neglected the duty enjoined upon him by the statute in failing to visit the room in controversy and to see that it was made safe, and also in failing to see that props and timber were at hand at said working place as required by the statute. It appears that he employed a Mr. Ab Miller to place rooms 2 and 3 in order for the men to operate the machines. Miller,

as it appears, put room 3 in order, but, as the mine boss stated at the trial, he "skipped out" without doing anything towards placing room 2 in order. The mine boss, prior to the injury received by appellee, had under his charge the inspection of some eight entries, together with the rooms which turned off from these entries; five of the entries being in the lower vein, and three in the upper vein, and room No. 2 being in the latter vein. The mine boss, on finding that he was unable to properly inspect and look after the safety of the entries and rooms which had been placed under his charge, applied to the superintendent and manager of appellant's mine for help, and requested that he be furnished with what is known as an "entry boss." The superintendent refused this request, on the ground that it would be too expensive to employ a man for this purpose. Prior to the time appellee was injured he had worked in coal mines for about five years; a part of the time serving as what he denominated as a "roustabout." He had had about two or three months' experience as a helper in operating machines. The machines at appellant's mine were run by electricity, and when operated they were moved from the left to the right, and as the work of cutting the coal progressed the apartments of the mine in which they were operated were propped or timbered by the men who ran the machines. Appellant's mine boss is shown by the evidence to have neglected to furnish props for room No. 2. If he had discharged his duty in this respect, there is evidence to prove that the stone which fell on appellee and injured him, as hereinafter shown, could have been propped and thereby supported without interfering with the operations of the machines.

On February 13, 1900, appellee was directed to go to work in rooms 1 and 2 as a helper to one Marion Miller. Miller was an experienced miner, and had worked in coal mines for about 18 years. On the aforesaid day Miller and appellee first moved the machine into room No. 1. They finished the work therein about noon, and, after eating dinner in the entry, they moved the machine into room No. 2. Appellee had never before been in the latter room, and knew nothing whatever in regard to its condition. After he and Miller had entered they discovered a large stone over the roadway. Miller made an examination and decided that the "stone was a bad one," and that it must be taken down, as there were no props on hand by which it could be propped. Appellee at the trial testified that, knowing that Miller, the man with whom he was to act as a helper in operating the machine. was an experienced miner and older than himself, he believed that what Miller said should be done under the circumstances was all right. It appears that Miller by the means of a pick and crowbar, helped and aided by appellee, succeeded in pulling the stone down. As to whether a

sledge hammer was used in removing the stone in question the evidence is conflicting; appellee testifying that no sledge or wedges were used for that purpose. Some two minutes or over after the stone had been pulled down, a stone weighing about 150 pounds, in another part of the roof of the room in question, five feet or more from the one which had been removed from the roof, fell upon appellee, thereby severely injuring him. This latter stone had no connection with the one that had been previously pulled down. Appellee was only in the room a few minutes before he was injured in the manner stated. At the time he sustained the injury he was in good health and was sound in body. He was between 22 and 23 years old, and had a wife and one child. He earned about $2.50 per day by working in and about the mine. As a result of the injury he is permanently disabled and is shown to be a "physical wreck." His urinary organs and limbs are paralyzed, and he is unable to work, and cannot stand on his feet except when supported by crutches. That appellant is shown by the evidence in the case to be guilty of negli gence both at common law and under the statute in question is beyond successful controversy.

Counsel argue that under the evidence it appears that appellee, together with Miller, his associate, was engaged at the time he was injured in voluntarily making a dangerous place safe. Therefore it is insisted that he had knowledge of the danger, and consequently assumed the risk. Appellant's theory is that the injury in question resulted from the fact that Miller and appellee, after entering room No. 2, removed from the roof thereof what may be denominated for convenience as "stone No. 1." If there were undisputed evidence in the record to establish this contention, we would have quite a different question presented for our decision ; but, as heretofore stated, there is evidence to show that the stone which was removed and the one which caused the injury were five feet or over away, separate and apart, and that they had no connection whatever with each other. Because the stone which may be denominated "No. 2" fell and injured appellee in about two minutes after No. 1 was removed, it is contended that from this fact it necessarily follows, or must be inferred that the removal of the first stone caused or produced the fall of the other. As to wheth er the latter fact might be inferred or deduced from other given facts in the case was purely a question for the jury, and not one for the determination of this court. There is evidence to prove that there was nothing In the appearance of the stone which fell and injured appellee to indicate to him that there was any danger of its falling. It is true that it may be said that, from the appearance and condition of the stone which he and his associate, Miller, removed, and from what Miller said in respect to its being