33 Ind. App. 178 | Ind. Ct. App. | 1904
Suit for personal injuries. It is first argued that the demurrer should have been sustained to the third paragraph of complaint. This paragraph of complaint avers that appellant, on June 25, 1901, was engaged in the manufacture and sale of gas, and had a system of pipes in the streets, with a main pipe about two and a half feet underground in Superior street, from which service-pipes ran to the houses of the consumers; that a contractor Was constructing a sewer parallel with this main pipe along Superior street at a depth of about twenty feet, over which sewer was built a tramway upon which was run a tram-car, operated by a cable; that in making the sewer excavation a service gas-pipe became disconnected from the main pipe, to repair which appellant sent a number of men, including appellee, who was, and had been for many years, a laborer and employe in appellant’s service; that the employes removed the earth from the service-pipe up to the main pipe, and were about to repair the break, “when Samuel Gordon, the foreman of said defendant, arrived, and took charge
The language of this paragraph suggests that it was
In the third paragraph of complaint the appellant is sued as the Ft. Wayne Gas Company. While appellant would not be liable under the' statute unless at the time of the alleged injury it was a corporation, yet we see no sufficient reason for not applying the rule that “the name of the defendant imports that it is a corporation, and it was, therefore, not necessary to specifically aver that it w'as a corporation.” Adams Express Co. v. Harris, 120 Ind. 73, 7 L. R. A. 214, 16 Am. St. 315; Indianapolis Sun Co. v. Horrell, 53 Ind. 527.
Conceding it is sufficiently shown that Gordon was a foreman, there is no averment that he had any authority to give orders, nor is it shown that to liis orders appellee at
Nor can the pleading be construed as averring facts which show that appellee, when injured, was conforming to any order to which he was bound to conform. In Louisville, etc., R. Co. v. Wagner, 153 Ind. 420, in construing this section the court said: “The test here is threefold: (1) Was the offending servant clothed by the employer with authority to give orders to the injured servant that the latter was bound to obey? (2) Did the injury result to the latter from the negligence of the former while conforming to an order of the former that the injured servant was, at the time, bound to obey ? (3) Was the injured party at the time of the injury in the exercise of due care and diligence? If these three things concur, appellee exhibits a good cause of action.” In Hodges v. Standard Wheel Co., 152 Ind. 680, 691, the court said: “Appellant certainly could not maintain this action, under the provisions of the act in question, by simply showing that at the time he sus.
Nor is this paragraph sufficient as a common law' action. The only negligence attempted to be charged is the negligence of Gordon. The negligent act of Gordon charged was his failure to warn appellee of the approach of the car. The theory of the pleading is that Gordon was negligent in not watching for the car and warning appellee. The averment is “that said foreman, by the exercise of ordinary care, copld have seen and would have seen said approaching car in ample time to have warned this plaintiff of any danger or approaching danger, but that said foreman, although having the opportunities and ability, from his position, could clearly see said approaching car, and so to warn said plaintiff, carelessly and negligently failed to do so, and without any warning said car, or a portion or attachment thereto, struck said plank as aforesaid.” But no attempt is made to charge that the foreman could have given the warning in time for appellee to avoid injury, or that, if the foreman had watched for the car, and had given warning as soon as he saw it or could 'have seen it, that appellee could or would have escaped injury.' It is not averred that it was a part of the foreman’s duty to warn appellee of the approach of the car. But there are no averments in the complaint to show that his failure to do so was other than
Judgment reversed.