This appeal is from a judgment, in favor of the appellee, for personal injuries sustained while employed by the appellant in the construction
There was no demurrer or motion addressed to the complaint in the lower court, and its sufficiency is
Appellant’s learned counsel attack the complaint under the fellow-servant rule, the rule as to the assumption of the ordinary and the extraordinary risks of the service, and the rule as to contributory negligence. Where there is enough in a complaint to bar another action, it is sufficient against an attack first made in this court. Harris v. Wright, 123 Ind. 272; Peters v. Banta, 120 Ind. 416 ; Chapelt v. Shuee, 117 Ind. 481; Sims v. Dome, 113 Ind. 127; Donellan v. Hardy, 57 Ind. 393. After verdict all intendments are taken in favor of the pleading, and the same rule applies where the attack is by motion in arrest, as where it is made for the first time upon assignment in this court. Colchen v. Ninde, 120 Ind. 88, and cases there cited. See also Elliott App. Proced., section 473.
We cannot presume, as counsel urge, that the appellee knew of the defects, in the face of the allegation that he did not know of them. Without such knowledge, there could be no assumption of the hazard as an extraordinary risk of the service. If we accept the rules above suggested, we cannot presume that the appellee had participated in the construction of the track, or that he was a fellow-employe of those who did construct it, or even that he was an employe at the time of such construction. The fellow-servant rule, therefore, cannot be invoked. No facts appear to indicate that appellee was negligent, and he alleges that he was not negligent: We cannot, therefore, presume contributory negligence. It is not claimed that any essential fact is wholly omitted. We cannot concur in appellant’s position that the complaint did not state facts sufficient to bar a second action for the same injuries. If the complaint were tested upon demurrer, we should not feel safe in
A conflict between the general verdict and answers to interrogatories is claimed, and is urged as sustaining appellant’s motion for judgment non obstante. Finding it necessary to reverse the judgment of the lower court, and, believing that this question will not arise again in the cause, we pass it without decision.
The cause was tried and submitted to a jury, upon the testimony introduced on behalf of the appellee. The following facts were established without conflict: The appellant engaged in the construction of a railway bridge, and the labor thereon was performed by a foreman, the appellee, and two or three other bridge carpenters. The work had proceeded to the point where twelve or fourteen bents had been constructed, and another was being added. Upon these bents, and extending from one to another, as they were constructed, the appellee and his fellow-workmen laid, near the center, two timbers, side by side, each timber being sixteen inches wide and sixteen feet long. Upon these timbers were placed, lengthwisb and end to end, oak boards three inches thick by ten inches wide. The timbers and boards so laid constituted a track upon which to transport, by means of a small but heavy carriage, the timbers from which the bridge was constructed. On the outer edges of the bents, and on either side of this track, were laid board walks for the workmen to walk upon in the discharge of such duties as required them to be upon the superstructure. In the top course of the track it was found that the ends of the boards would vary in thickness, and would make uneven joints. In order that these joints might be even, and afford a smoother course for the timber carriage,- the appellee and his fellow-workmen would insert, under the thinner boards, a
This work, in which the appellee engaged, proceeded from the 26th day of December, 1892, until the afternoon of March 9, 1893. This method of transporting timbers was the usual and customazy method izi bridge building. The day of appellee’s injury, he had frequently beezi upon the superstructure azzd along the course of the track. The foreman had, likewise, been upon the superstructure and along the course of the tz-ack sevez-al times during the day, and had directed the work for that particular afterzzoon. The work so directed was'hi the trazisportation of timbers. In this, the appellee and two other woz-kmen were engaged; and, at the time of the znisfortuzie, the appellee was upon one of said board walks, the other two workmen were pushing and guiding the timber carriage with a large timber, upozr it. The appellee was proceeding towards the extended end of the timber, to assist in pushing azid guidizigit, though he had not come zieaz-er than four-feet from'it when the caz-riage came upon a joint in the track, from which a'.wedge or shim had worked and left the joizrt uneven. In meeting this uneven joint, the caz-riage was jolted, azid the timber thez-eon toppled and fell from the superstructure. In its fall it struck the board upon which the appellee was walking, and so jarred and disturbed it as to precipitate the appellee to
The question is presented as to whether, upon these facts, the verdict should have been for the appellee.
The ordinary rule urged by the appellee, that this court will not determine the weight of conflicting evidence is not available to support the verdict, since, as we have shown, the evidence is without conflict and presents the case, upon the facts stated, in as favorable a view for the appellee as possible. The question of the appellant’s liability, therefore, is not one of fact for the exclusive decision of the jury, but is one of law upon which the lower court could, and this court must pass. Faris v. Hoberg, 134 Ind. 269 ; Ohio, etc., R. W. Co. v. Dunn, 138 Ind. 18 ; Day v. Cleveland, etc., R. W. Co., 137 Ind. 206.
That the facts should warrant a recovery it-was indispensable that the appellee should establish, by the evidence, some duty owing to him at the time, by the appellant, the breach of which resulted in the injury complained of, and that he had not by his own negligence contributed to the injury. It is inconceivable that there should be a liability without a breach of duty. Not only so, but, if it be found that there is some breach of duty on the part of the master, and it be further found that with a knowledge of this breach the servant continues in the service, not notifying the master pf the breach, and receiving no assurances that 'the defect or negligence will be repaired, the servant will be deemed to have assumed the hazard of such defect or breach, and to have waived a right of recovery for injury therefrom. Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156 ;
What duty of the appellant was violated ? The appellee seeks to uphold the verdict and judgment in his favor, upon the assumption that the appellant was negligent in not keeping the wedges in place. The argument is that the place for the performance of the labor was unsafe, and that the foreman was a vice-principal, and neglected to keep the wedges in place.
It is the general rule that it i's a duty of the master to supply safe places and appliances for the service of his employes, but it is not understood that this duty requires the master to make a powder-house a place of safety or to make railroading as free from danger as hoeing corn or to make the labor of bridge building, at fifty-three feet above the ground, as free from hazard as the service of an office clerk. Every service has its own peculiar hazards and the law does not hold the master accountable for such hazards as ordinarily and naturally belong to any service. Here the direct and only cause of the injury was in the displacement of a wedge. The injury was due not to the ordinary nor to the extraordinary dangers of the place of service, but simply to the manner of using the ordinary instrumentalities of the service. It was not complained, nor was it in evidence, that the use of wedges or shims was required by the master when another appliance would have been safer. Neither was it a question that the master supplied the wedges or shims. On the contrary it was an established fact that the method adopted for the transportation of the timbers was the usual and ordinary method; and the appellee, without misdirection from the appellant or ignorance on his part, participated in the construction of the track and in the placing and use of the wedges, with every opportunity to know their hazards that the
W e might stop at this point, since we think it is clear that the appellee failed to show the breach of any duty owing to him by the appellant, but, as we have seen that
He had every opportunity that the appellant had of knowing the tendency of the wedges to work out and render the track unsafe, and continued in the service with no promise of a different method of maintaining a smooth track. In so continuing with such knowledge, he assumed the hazard and waived liability. Ames v. Lcifce Shore, etc., Co., supra, and cases there cited; Day v. Cleveland, etc., Co., supra, and cases there cited. As said in the last cited case: “In a case where the servant is one of mature age and experience, as in this case, the law never imposes the duty on the master of becoming eyes and ears for his servant, where there is nothing to prevent the servant from using his own eyes and ears to avoid danger. ” Again it is said: ‘ ‘ The law requires that men shall use the senses with which nature has endowed them, and when without excuse one fails to do so, he alone must suffer the consequences, and