161 Ind. 673 | Ind. | 1903
Lead Opinion
— Suit for personal injury, instituted by appellee against appellant. The complaint of the former .seeks to charge appellant with negligence because of the omission of its master mechanic, and the first question is whether it appears from the complaint that said master mechanic was not a co-servant, but was a person for whose acts the appellant was responsible. It is charged in said pleading not only that said master mechanic had full charge of the work at which appellee was engaged at the time of his injury, but that he had been “intrusted by said defendant with the duty of keeping the ways, works, plant, tools, and machinery connected with and in use in the business of said defendant corporation in proper condition.” The complaint shows that the master mechanic was a vice-principal, and in that particular, at least, facts are stated on which a common law liability may be based. Southern Ind. R. Co. v. Martin, 160 Ind. 280.
The further question that is presented concerning the complaint is whether it should state facts showing that appellee had not assumed the risk, which in this case arose from leaving a bent or truss leaning against a gin pole without being held in position by guy-ropes or other means of support. It is admitted by counsel for appellee that this showing would have been necessary, according to the course of decision in this State, in stating a liability for negligence between master and servant not resting upon any statute. Louisville, etc., R. Co. v. Sandford, 117 Ind. 265; Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266, and cases there cited.
At the basis of every well-grounded action for negligence must lie a legal duty to use care. Brooks v. Pittsburgh, etc., R. Co., 158 Ind. 62. Otherwise stated, a complaint for negligence should exhibit a duty owing. Black, Law & Prac. in Accident Cas., §150. Notwithstanding the duties the master owes the servant, yet, at common law, if it appears that the latter had assumed the risk,
As said in Fitzgerald v. Connecticut River Paper Co., supra: “It is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader general application, and which is expressed in the maxim volenti non fit injuria. The reason on which it is founded is, that, whatever may be the master’s general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is.”
Appellee’s counsel contends that a cause of action is stated under the first section of the act of March 4, 1893 (Acts 1893, p. 294), known as the employers’ liability act. Counsel for appellant sqek to meet this contention by the claim that said section is unconstitutional as applied to corporations other than railroad, and by the further claim that the common law doctrine of assumed risk is to be read into said statute, thereby making such doctrine a part of
The English act (Chap. 42, of 43 and 44 Victoria), on which nearly all of the employers’ liability acts of this country are founded, resembles the first section of the Indiana act in the subdivisions; but, instead of providing for a liability in its opening language, the former act provides, after the enumeration of the subdivisions, a remedy to the employe to the same extent “as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work.” It was held in Thomas v. Quartermaine, L. R. 18 Q. B. D. 685, which involved a defect in a master’s premises, that the act had not placed the servant
While the act is remedial, and, to the extent that the legislative purpose can be divined, is not to be construed in a spirit of narrowness, yet, to the extent that the legislative purpose is not expressed, we must follow the rule and reason of the common law. As said by Mr. Sutherland: “Statutes are but a small part of our jurisprudence. The principles of the common law pervade and permeate everything which is subject to legal regulation. Such law defines rights and wrongs of every description and the remedies for public and private redress. By its principles stat
. In construing the act in question, it has been said in some of our cases that it was intended to put certain servants under certain circumstances into the vice-principal class. Baltimore, etc., R. Co. v. Little, 149 Ind. 167; Thacker v. Chicago, etc., R. Co., 159 Ind. 82. In Pittsburgh, etc., R. Co. v. Moore, 152 Ind. 345, 44 L. R. A. 638, it was distinctly held that the doctrine of assumed risk was applicable to cases arising under the fourth subdivision of the statute; and in Whitcomb v. Standard Oil Co., 153 Ind. 513, this rule was adhered to in a case that brought under review subdivisions one and two of the statute. In the case last cited it was said: “We know of no warrant for tin's court to accept the intention of the Assembly of 1895 as controlling the construction of a statute passed by the Assembly of 1893, especially where we are required to determine that intention by implication, and we must, therefore, confine ourselves to approved rales of construction and look rather to the intent of the legislature that gave the statute origin, if there is anything obscure in its provisions. But there is nothing obscure in the provisions
We have no hesitation .'in asserting that the doctrine of assumed risk is involved in cases arising under the statute. With the repeal of §2 the common law became operative, and therefore the doctrine of assumed risk became a part of the section that created the liability, except to the extent that -the statute may be said to be in conflict with the common law. Thus the old doctrine that the servant injured assumed the risk that his co-servants might be negligent, as an implication from their common employment merely, is not to be held applicable to. the' servants for whose acts the statute makes the master liable, for such a holding would establish in its full vigor the co-servant rule, which the statute was intended, to modify. See Davis v. New York, etc., R. Co., 159 Mass. 532; Woodward Iron Co. v. Andrews, 114 Ala. 243; Southern R. Co. v. Johnson, 114 Ga. 329; Terre Haute, etc., R. Co. v. Rittenhouse, 28 Ind. App. 633; Reno, Employers’ Liability, §§241, 246, 247, 249, 250; Dresser, Employers’ Liability, §2.
It may be said, in passing, that the rule concerning assumed risk.is different in cases arising under the employers’ liability act, where definitive duties are not prescribed, from what it is where a statute points out definitely what
Of course, in cases of this kind, where the servant is confronted by the exigencies of a new situation, and where he has the implied assurance of reasonable safety to himself, growing out of the command of the person who stands for the master to do the work required, the question of assumed risk often beeomes a mixed one of law and fact. Brazil Block Coal Co. v. Hoodlett, 129 Ind. 327; Indiana, etc., R. Co. v. Bundy, 152 Ind. 590; Shearman & Redfield, Negligence (5th ed.), §186a; Bailey, Master’s Liability, 188, 189. But as the risk that the bent or truss mentioned in the complaint in this case would fall may have appeared glaring, and as the appellee may or should have appreciated the full extent of the danger, we regard the complaint as insufficient.
Judgment reversed, with a direction to sustain the demurrer to the complaint.
Rehearing
On Petition for Rehearing.
— In the brief on behalf of appellee in support of his petition for a rehearing his counsel earnestly insists that we erred in adjudging the complaint insufficient because of the omission to allege facts showing that the risk which eventuated in appellee’s injury had not been assumed by him. Counsel for appellee omits to state whether the complaint attempts to show a common law liability, or whether it is based on the employers’ liability act, but he now contends for the sufficiency of said pleading on both grounds. We shall briefly consider the points made, and shall first examine the question as to a common law liability.
It will be observed that it is not shown whether appellee or Edwards first performed' the particular task assigned him, and it does not appear that appellee did not' hear the order given to Edwards, and have an opportunity to escape before it was executed. We have, then, a case where it is made to appear that it was negligent to leave the bent leaning against the gin pole without other sup
At least, as applied to cases where it may be inferred that the danger had become one of the assumed risks of the employment, it has been many times held that .the complaint of the servant must aver facts showing that the risk was not one which he had assumed. Lake Shore, etc., R. Co. v. Stupak, 108 Ind. 1; Indiana, etc., R. Co. v. Dailey, 110 Ind. 75; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265; Wabash, etc., R. Co. v. Morgan, 132 Ind. 430; Big Creek Stone Co. v. Wolf, 138 Ind. 496; Peerless Stone Co. v. Wray, 143 Ind. 574; Potter v. Knox County Lumber Co., 146 Ind. 114; Cleveland, etc., R. Co., v. Parker, 154 Ind. 153, and cases cited; Chicago, etc., R. Co. v. Glover, 154 Ind. 584; Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266; Williams v. Clough, 3 Hurl. & Nor. 258; Bogenschutz v. Smith, 84 Ky. 330, 1 S. W. 578; Buzzell v. Laconia Mfg. Co., 48 Me. 113; Coal & Car Co. v. Norman, 49 Ohio St. 598, 32 N. E. 857; Missouri Pac. R. Co. v. Baxter, 42 Neb. 793, 60 N. W. 1044.
In Williams v. Clough, supra, a servant sued his master, alleging that the defendant had an unsafe ladder, and that well knowing that said ladder was unsafe, he wrongfully
Mr. Wood, in his work on master and servant, §382, after stating some of the elements required to be made out by the servant in a suit against the master for negligence, says: “When this is established, he [the servant] is met by another presumption, the force of which must be overcome by him, and that is, that he assumed all the usual and ordinary hazards of the business. To overcome the force of this presumption he must show that the injury did not arise from an obvious defect in the instrumentalities of
It is required that a complaint should state facts showing the existence of a duty in order to predicate a charge of ' negligence upon it. Faris v. Hoberg, 134 Ind. 269, 39 Am. St. 261; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265. In the latter case it was said that where the servant has assumed the risk the master “is exonerated because the employe himself assumes the danger, as increased, and, as he voluntarily assumes it, the master is .relieved. The parties change positions; the employe assumes the risk that, If it were not for his knowledge, his employer would be compelled to assume. The duty which the employer is under is materially affected by the element of knowledge, and unless a duty is shown of course there can be no actionable negligence, since a duty lies at the
It is true that if the facts of the case had been shown in evidence under a sufficient complaint, the jury, having to deal with a mixed question of law and fact, might have been authorized to conclude that appellee had not assumed the ¿risk under the particular circumstances; but appellee can not successfully invoke authorities upholding the right of recovery upon the part of a servant, decided as questions as to the effect of evidence, to save a bad complaint. In Louisville, etc., R. Co. v. Sandford, supra, it was said: “The question comes to us as one of pleading and not as one of evidence. Material facts must' be directly stated in a pleading, but they may be inferred from testimony and from circumstances, when the question is as to the measure and sufficiency of proof. Inferences are admissible and controlling where the question is one of proof, but not so where the question is one of pleading. It is not enough to plead evidence from which the facts may be inferred, but the facts themselves must be stated in an issuable form.”
In Louisville, etc., R. Co. v. Corps, 124 Ind. 427, 8 L. R. A. 636, this court stated: “We are here dealing with a question of pleading and not of evidence. There is, as is well known, an essential difference between matters of pleading and matters of evidence; in pleading, facts must be directly and positively averred, while as matter of evidence conclusions may be inferred, without positive statements, from facts and circumstances. In pleading, it is incumbent upon the plaintiff to state all the facts essential to a cause of action, and if any material fact is lacking the complaint will go down before a demurrer. A material fact is here absent, and that is the fact that the danger was not an incident of the service in which the plaintiff voluntarily engaged. This fact must be averred, as the rules of pleading require, although if the question were one of
As to the sufficiency of the complaint under the employers’ liability act, the general rule is that if a person seeks to maintain an action under a statute, he must state specially every fact requisite to enable the court to judge whether he has a cause of action under the statute. Ezra v. Manlove, 7 Blackf. 389; Montgomery v. State, ex ret., 53 Ind. 108; Weir v. State, ex rel., ante, 435; Bartlett v. Crozier, 11 Johns. 439, 8 Am. Dec. 428, and cases there cited; Austin v. Goodrich, 49 N. Y. 266. In the leading case of Spieres v. Parker, 1 Durn. & East. 141, which was an action to recover a penalty provided for by statute, the plaintiff in his declaration negatived an exception found in the section providing for the penalty, pursuing the words of the exception. It was held that, as the plaintiff had not brought himself within the exception as construed by the court, his declaration was bad, even after verdict. We have a number of^cases in this State in which it is held that if by judicial construction the meaning of an act has been narrowed, so that the'provisions thereof do not, without some other element, constitute a crime, it is necessary to charge the offense so as to show that a crime has been committed. Bates v. State, 31 Ind. 72; Manheim v. State,
In Elliott, Railroads, §1349, in speaking of employers’ liability acts, it is said: “There can, of course, be no doubt that the general rules of pleading and evidence apply to actions against employers under the statute except where they are changed by the statute.”
Under §2 'of the act under consideration (§7084 Burns 1894) it was expressly provided that neither an employe nor his legal representative should be entitled to recover under the act in any case “where the injury results from obedience to any order which subjects the employe to palpable danger.” This clearly shows one of the intended limitations upon the language of §1, and with the repeal of §2 the liability in a given case must rest on the section containing the enacting clause. Not only do the rules of construction render it proper for us to construe the enactment in the light of the common law, but by the creation of a liability based on “negligence” we are required to look to common law principles in determining the meaning of the general Assembly in the use of the term. As observed by Lord Cranworth in Patterson v. Wallace, 28 Eng. Law & Eq. 48: “In England, in Scotland, and in every civilized country, a party who rushes into danger himself can not say: That is owing to your negligence.” The common law and statute being the verycwarp and woof of the law on which a claim of liability is asserted, we deem it clear that the exception must be implied in the very section which extends the responsibility of the master, and that the exception should be negatived.
If the allegation that the appellee was “in the exercise
After a careful reexamination of the questions discussed in the brief of appellee on petition for a rehearing, our views upon such points, as expressed in the original opinion, have been confirmed rather than shaken. We therefore overrule said petition.