170 Ind. 84 | Ind. | 1908
Action by appellee for personal injuries. The complaint set out in the transcript is in five paragraphs. The third and fifth paragraphs were withdrawn, and a demurrer “for want of facts” to the other paragraphs was overruled. Trial and judgment in favor of appellee.
The errors assigned call in question the action of the court in overruling the demurrer to each of the paragraphs one, two and four of the complaint.
The cause was tried by the court and the parties upon the theory that the first paragraph of the complaint was under the second clause, and the second and fourth paragraphs were under the fourth clause, of section one of the employers’ liability act (Acts 1893, p. 294, §7083 Bums 1901).
The part of said act necessary to be considered in the determination of this case reads as follows: “That every railroad * * * operating in this State, shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform. * * * Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any * * * locomotive engine or train upon a railway.”
The negligence attempted to be charged against said foreman in said paragraph was that he “negligently and carelessly, and without any warning to the plaintiff, and without placing or sending out any flag or signal, and without giving any signal to warn the person in charge of the switching engine not to come onto the track where the plaintiff was at work, or to slacken the speed of said engine and move slowly and cautiously on said track, and without warning said person that the plaintiff was at the place where he was directed to go, permitted and directed the locomotive engine belonging to defendant and operated by its employes to come onto said track at a careless rate of speed, with a car attached, and allowed the men in charge thereof carelessly to detach said car from said engine, and, without any notice or warning, to cause said detached car to run with rapidity and force onto said switch and against and upon plaintiff. ’ ’
American Rolling Mill Co. v. Hullinger (1904), 161 Ind. 673, 687, and eases cited; Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 96, 102 Am. St. 185, and cases cited; Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 297. Said first paragraph is insufficient for the reason that it fails to show that a duty devolved upon said foreman to exercise care for the safety of appellee.
Said paragraphs are insufficient because they fail to show by the averment of proper facts that appellant or the person in charge of said locomotive engine owed any duty to appellee at the time and place where he was injured. The rule is well settled that, in an action to recover for a personal injury on account of negligence, it is essential that the complaint contains an allegation or statement of the facts from which it appears that the defendant owed a duty to the plaintiff, and that the defendant negligently performed or
There is nothing in the facts alleged in said second and fourth paragraphs showing that it was the duty of the person in charge of said locomotive engine to give any “signal, notice or warning, ’ ’ before, or at the time of, running said locomotive engine and freight-car upon said switch track. If this duty arose from any facts or circumstances, or out of any rule or rules of appellant company, or out of any orders or directions given by it, or from any thing that required the person in charge of said locomotive engine to give such “notice, warning or signal,” the same should have been directly and positively alleged. If said paragraphs disclosed such duty, then, under a well-settled rule, a violation or breach thereof may be shown by a general allegation of negligence. A general allegation of negligence, however, is not sufficient to show both a duty and a violation thereof. Pittsburgh, etc., R. Co. v. Peck, supra, and cases cited.
What we have said and the authorities cited, concerning the insufficiency of the first paragraph of complaint, apply with'equal force to said second and fourth paragraphs.
It follows that the court below erred in overruling the demurrer to said first, second and fourth paragraphs of the complaint. The judgment is reversed; with instructions to sustain the demurrer to said paragraphs, and for further proceedings not inconsistent with this opinion.