177 Ind. 463 | Ind. | 1911
Appellant instituted an action against appellees for damages for alleged negligence in the killing of her husband. The complaint is in one paragraph, the material portion of which, so far as the question before us is concerned, is as follows: That appellant’s decedent was the employe of defendants, that he was employed as a member of a bridge gang on the Evansville and Indianapolis division of defendant’s road; that one Clark was the boss or foreman of the gang, and had under him a number of men, naming them; that on July 4, 1907, defendants sent out an extra work train for the purpose of delivering piling along the road; that the piling was about thirty-five feet long, and from twelve to fourteen inches in diameter; that the train was run to a point near Doans Creek, and that decedent was then and there ordered by the boss, with others, to unload the piling with cant-hooks and crow-bars; that the piling was unloaded until there were only two left, one on the top of the other, and that the top piling was fast; that the piling was unloaded off the east side of the car, and rolled down an embankment to the east; that in unloading said ear defendants should have provided skids—long pieces of timber whereby one end would rest on the ground and the other end on the edge of the car—for the purpose of rolling the piling off the ear to the place where it was desired; that for the purpose of unloading the piling in safety, defendants should have furnished checks, or stops, so that when each piling was rolled from off the under piling on the west side, it could have been stopped before rolling off across on the east side; that standards should have been placed on the east side of the car, in order to have stopped the piling when once started to roll from off the top of the lower piling on the west side of the ear, so that the same could have been unloaded in safety, without rolling off onto decedent; that defendants, by their boss, owed plaintiff’s decedent a further duty not to order him into a dangerous place; that defendants, by their boss, owed plaintiff’s decedent a duty not care
The complaint further alleges that it was the duty of decedent to obey the orders and commands of the boss, and he was compelled to, and did do so, and that it was the duty of defendants to conduct their business in a safe and prudent manner, so that injury might not come to decedent, and it is alleged, as to each of these alleged duties, that it was negligently and carelessly omitted, and that defendants by their boss negligently and carelessly ordered plaintiff’s decedent, and directed and negligently commanded him, to go upon the car at about the center thereof, on the west side of the piling, and commanded him at that point to assist in starting the piling to rolling, which piling was then and there fast, and hard to break loose, and the foreman knew it; that the boss placed him in the center of the car in front of the piling, where it was perilous and dangerous; that after being negligently ordered and directed by the boss to go into the middle of the ear, and before the piling started to roll, the danger became imminent, and defendants, by their boss, then and there carelessly and negligently failed to order decedent out of said dangerous and hazardous place; that after ordering plaintiff’s decedent into the dangerous place, and failing to order him out of the dangerous place, the boss commanded decedent, with others, to start the piling to rolling, at a time when defendants, by the boss, knew that the piling was stuck, and tight, and hard to move, and would require great force to start it, and at a time when defendants, by their boss, knew that after being started with great force and momentum, it would roll off the car, and, without providing any skids, standards, checks or stops, negligently ordered plaintiff’s decedent to the middle of the ear, and in
The errors assigned are “that the court erred in sustaining the appellees’s demurrers to the appellant’s complaint,” and “that the court erred in sustaining each demurrer of each appellee to the appellant’s complaint.” This was necessarily a ruling as to each demurrer and an exception to the ruling as to each, and the errors assigned properly present the question. Consumers Gas Trust Co. v. Howard (1904), 163 Ind. 170, 71 N. E. 493; Chicago, etc., R. Co. v. Hamilton (1908), 42 Ind. App. 512, 85 N. E. 1044; Farmers, etc., Ins. Co. v. Yetter (1902), 30 Ind. App. 187, 65 N. E. 762.
It is not claimed that this complaint is good under the employers’ liability act, but that it is good as a common-law action. Appellees’ contention is that the complaint is insufficient, in that it nowhere alleges that decedent did not appreciate or have knowledge of the omissions of duty and the dangers alleged, so as to bring him within the non-assumption of the risk. It is alleged that he was a member of a bridge gang, but there is no allegation as to what his duties were under his employment, or that this work was not in the line of his duty and employment, or that he was ordered to do a thing outside the line of his employment. The contention of appellant is, that where the facts averred show the foreman to be a vice-principal, and the complaint proceeds on the theory of the servant being ordered into, and a
It is not shown that the manner of unloading the piling was not the usual one, or, if it was not, that decedent did not know it as well as any one, or that he had not as full knowledge and appreciation of the danger as any one, or at least that the conditions and results were as obvious to him as to any one. The allegations of the complaint rather imply his knowledge and appreciation.
It is impossible to uphold the complaint on the theory of a common-law action, and it is not claimed to arise under a statute.
What we said in the case of Richey v. Cleveland, etc., R. Co. (1911), 176 Ind. 542, 96 N. E. 694, disposes of the recommendations of the Appellate Court on the subject of jurisdiction.
Judgment affirmed.
Note.—Reported in 96 N. E. 700. See, also, under (1) 2 Cyc. 989; (2) 26 Cyc. 1196; 52 Am. Rep. 787 ; 34 Am. Rep. 621; 28 L. R. A. (N. S.) 1207; 30 L. R. A. (N. S.) 1067; 21 Ann. Cas. 763;