32 Ind. App. 355 | Ind. Ct. App. | 1904
Action by appellee against appellant for the negligent killing of appellee’s minor son. Appellant filed a plea in abatement, which, on appellee’s motion, was stricken out. The plea iu abatement, motion to strike
The complaint, which is in one paragraph, avers that appellant was engaged in the quarrying, mining, and manufacturing and selling stone; that plaintiff was the wife of James Aelson, who had abandoned his family, and for two years had failed to contribute to their support; that on the 25th day of August, 1899, appellee’s oldest son, Pleasant, was in the employment of appellant, and had been in such employment prior thereto as water boy, engaged in carrying .water for other employes to drink; that on that day he was fourteen years of age, and that all of the wages he earned by his employment to appellant were turned over to appellee to assist in the support of her family, and 'that her said son was the principal support and the only source of income to her; that, in operating its quarries, appellant had a large amount of machinery, including derricks, steam power, masts, booms, chains, hooks, etc.; that attached to the mast near the bottom was a large and heavy piece of timber, commonly-called a derrick boom, which extends out thirty or forty feet, and which is so constituted that the end farthest from the mast, by force of steam power, may be raised and lowered, turned to the right or left, at the direction of the manager of the derrick; that on the end farthest from the mast are fastened heavy chains, with hooks, which
The first question discussed by counsel arises under the ruling of the court striking out appellant’s plea in abatement. In the pleading' called “a plea in abatement” it is averred that James Nelson, mentioned in the complaint as appellee’s husband, was not, at the time of the commencement of the action, dead or in prison, but that he had deserted his family. It was on this ground alone it was asked that the action abate until the facts charged
Section 266 Burns 1901 provides: “When a husband or father has deserted his family, or is imprisoned, the wife or mother may prosecute or defend, in his name, any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had.” Section 267 Burns 1901 is as follows : “A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child.” This statute, upon the condition named, vests in the mother the right to prosecute an action for the injury or death of her minor child. Section 368 Burns 1901 provides: “Pleadings denying the jurisdiction of the court, or in abatement of the action, and all dilatory pleadings, must be supported by affidavit. The character or capacity in which a party sues or is sued, and the authority by virtue of which he sues, shall require no proof on the trial of the cause, unless such character, capacity, or authority, be denied by a pleading under oath, dr by an affidavit filed therewith.”
Counsel for appellant contend that under this statute they can not test appellee’s capacity to sue, except by a plea under oath, and that the issue upon'that plea should have been so determined. We think counsel are mistaken. It is not a question of capacity, but a question of right conferred by statute upon the wife and mother under the conditions named. ITnder these statutes the wife and mother has the same right to prosecute an action of this chqraqfe];
The next question in the order of discussion is the one which arises upon the action of the court in overruling tlie demurrer to the complaint. The complaint is a common law count to recover damages for the alleged negligent killing of appellee’s son, and is not drawn upon the provisions of the employers’ liability act of 1893. It charges appellant with two acts of negligence, in this: First, that it required appellee’s son to cease his duties as water boy, and directed him to perform the duties of signal boy — the latter position being a more dangerous one than the former, and so known to be by appellant, of which fact the deceased was ignorant; second, the manner in which appellant, by its servants, undertook to move a heavy stone, bringing it in contact with another heavy object, and applying sufficient force, through its derrick and ropes, to pull the “dogs” from their hold upon the stone, which
An employe in a case of this character assumes all the ordinary dangers and risks incident to the employment, which includes obvious dangers and risks of which he has knowledge, or of which, by the exercise of ordinary care, he could have known. These are propositions of law about which there seem to be no controversy. It is necessary, therefore, for the complaint in such case to state facts showing that the injured party did not assume the risk. American Rolling Mill Co. v. Hullinger, 161 Ind. 673. An employe assumes not only the ordinary dangers of his employment which are known to him, but also such as by the exercise of ordinary diligence could have been known to him. Pennsylvania Co. v. Ebaugh, 152 Ind. 531; Linton Coal, etc., Co. v. Persons, 15 Ind. App. 69.
The doctrine of assumption of risk on the part of the employe rests upon his knowledge of the dangers incident to his employment, and this includes the dangers which he might have known by the exercise of ordinary care and diligence. It has many times been ruled that in the class of cases we are now considering it is essential, in order to make a good complaint, to aver that the injured party had no knowledge of the danger. Peerless Stone Co. v. Wray, 143 Ind. 574; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265; Big Creek Stone Co. v. Wolf, 138 Ind. 496; Louisville, etc., R. Co. v. Corps, 124 Ind. 427, 8 L. R. A. 636; Brazil Block Coal Co. v. Young, 117 Ind. 520; Wabash, etc., R. Co. v. Morgan, 132 Ind. 430; New Kentucky Coal Co. v. Albani, 12 Ind. App. 497; Cleveland, etc., R. Co. v. Sloan, 11 Ind. App. 401; Lake Shore, etc., R. Co. v. Kurtz, 10 Ind. App. 60.
In New Kentucky Coal Co. v. Albani, supra, this court said: “The servant’s knowledge or want of knowledge must be specially alleged, because upon this it depends
~ As far as the complaint goes in this case is to the extent of averring that the place to which appellee’s son was sent to work was more dangerous and hazardous than the position he had formerly occupied, and that he was ignorant of the increased danger. There is no averment in the complaint to the effect that he did no know the place was dangerous. The complaint no place negatives his knowledge of the danger. The averment that the position of signal boy was more dangerous than that of water boy, and that the deceased was ignorant thereof, falls short of an allegation that he had no knowledge of the danger. Eeither is there any allegation that ho had no knowledge of the danger that confronted him from the operation of the derrick in moving the stone in the manner described by the complaint. Under the uniform rule in this State, as indicated by the authorities cited, we are constrained to hold the complaint bad for its failure to aver that the deceased had no knowledge of the danger which confronted him and caused his death.
The-judgment is reversed, and the cause remanded, with instructions to the court below to sustain the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.