29 Ind. App. 250 | Ind. Ct. App. | 1902
Suit for personal injuries. Complaint in two paragraphs to which demurrers were overruled. Issues formed upon general denial, trial by jury, verdict and judgment for appellee. The first paragraph of the complaint avers that appellant is a corporation; that appellee is a.minor eighteen years of age, and on the 1st day of August, 1899, was employed by the appellant to work in its mills, and on the same day was put to work inspecting and handling steel plates, and kept at such work until August II, 1899. That when appellee began working for appellant he had had no experience in or about a steel-mill, and knew nothing whatever of the work or the danger of such a place, and that, when he began work, appellant, among other instructions given him, directed that at any time any of the machinery or appliances became broken or misplaced, and it became necessary to make repairs, that he should quit his work, and go to the place where such repairs were being
Appellee avers in this paragraph that the wheel was over and above a vat of melted metal used to coat finished sheets of steel, and, to replace the wheel, it was necessary to stand upon the vat containing the metal. He does not aver in direct terms that he did not know the metal was hot, but avers that at the time it gave no signs of its intense heat, and from its appearance a person could not by the use of the eye ascertain its heat, and that he did not know its contents were so intensely hot. Hor is it averred that he was ignorant of the danger of attempting to stand where he did to do the work he was attempting to do. The only danger incident to the work was the danger of being burned from'the hot metal, and there is no express averment in this paragraph that he was ignorant of that danger. It is averred that when he began work he was inexperienced about a steel-mill, and was a minor eighteen years of age. The general rule is that minors are held to the same riská of the employment in which they are engaged, and which are open and obvious to them, as adults. Toledo, etc., R. Co. v. Trimble, 8 Ind. App. 333; Levey v. Bigelow, 6 Ind. App. 677, and cases there cited. The position appellee assumed was a hazardous one, and it must be held, from the averments of this paragraph, that the danger was as well known to him as to anyone.
The second paragraph contains substantially the same averments, and contains additional averments as to the location of the pot or vat with reference to the place where appellee worked; that a piece of the wheel was broken off when
It is true, it is the general rule that a complaint need only aver that the injured party was ignorant of the dangerous defect; but that the proof must show that he did not know of the defect, and could not have known of it by the exercise of ordinary care. But a general averment that the injured person did not know of the defect will be overcome by averments from which it is manifest that he must have known of it, or had the same means and opportunity for such knowledge as the employer had. Ames v. Lake Shore, etc., R. Co., 135 Ind. 363. It is enough to say that the common experiences of life compel us to say that it is not possible for a person eighteen years of age to approach and stand upon the edge of such a vat of melted metal without learning it was intensely hot.
The negligence charged against appellant is failure to cover the vat of melted metal; and also failing to inform appellee or caution him as to the danger, knowing the. pot of metal was extremely dangerous, that appellee was without experience, and that a missing blow or turning of the hammer would throw appellee into the metal. Appellee must have known, as well as appellant, that the vat was uncovered, that its contents were hot, and that a position upon the edge of the vat was dangerous. Any person in appellee’s position, whether experienced or inexperienced, must be held to know such facts. An employer is not called upon to tell an employe what, under the same circumstances, must necessarily be known to everybody. Appellant could have no reason to believe that the heat which necessarily, radiated from the vat would not disclose to appellee its eonditión. And there is nothing averred to show that appellee did not know, as well as appellant, that a missing blow or turning of the hammer would throw him into the vat.
Erom the facts specially averred it must be concluded that the danger was open and obvious, and, from the conditions and surroundings, was necessarily as well known to appellee as to appellant. The principal act of omission charged against appellant is its failure to cover the vat of melted metal. The danger to appellee was of being burned by this metal. Eut from the very nature of the contents of the vat, it can not be said there was any latent danger. We fail to understand how a person could take a posi
Both paragraphs of complaint proceed upon the theory that appellant is liable because of failure to perform its common law duty toward appellee. This is the distinct and definite theory of the pleading gathered from the reasonable and fair construction of the language used. Miller v. Miller, 17 Ind. App. 605, and cases there cited. Its averments are not sufficient to bring the case within the provisions of either subdivisions two or four of §1 of the employers liability act, as argued by appellee. §7083 Bums 1901. It is not claimed, by any averments, that the injury resulted from the negligence of any person in the service of appellant to whose order or direction appellee at the time of the injury was bound to conform and did conform; nor that the injury was caused by the negligence of any person in appellant’s service who had charge of the work, or by the negligence of any person, co-employe, or fellow seiwant
Judgment reversed, with instructions to sustain the demurrer to each paragraph of complaint.