156 Ind. 460 | Ind. | 1901
—Complaint in two paragraphs for a-personal injury caused by the negligence of an, incompetent fellow servant. Demurrer to ,each paragraph sustained, and judgment for appellee. Error is assigned upon the rulings on the demurrers.
The substance of each paragraph of the complaint may be stated as follpws: The Bedford Quarries Company was, on and before July 14, 1898, a corporation organized uncj'er the laws of the State of Indiana, and was engaged in quarrying and shipping stone from a point near the city of Bed-
Reduced to its lowest terms, this paragraph charges that the appellee negligently employed and retained in its service an incompetent servant with knowledge of his incompetency, and that, by reason of such incompetency of the said servant, the appellant was injured without fault on his part, he having had no previous knowledge of such incompetency.
The general rule of the common law as to the liability of a master to a servant for injury occasioned by the negligence of an incompetent fellow seryant, is thus stated: An employer who negligently, or knowingly, employs' or retains in his service ah incompetent servant is liable for injuries to a fellow servant sustained through the incompetency of the servant so employed and retained, unless, the injured servant has assumed the risks incident to such ineompetency. 12 Am. & Eng. Ency. of Law (2nd ed.) 909, 912; 3 Thompson on Negl. 974; 1 Sherm. & Redf. on Negl. (5th ed.) §191; Wood’s Law of Master & Serv. (2nd ed.) §416, p. 814, et seq.; Ohio, etc., R. Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134; Evansville, etc., R. Co. v. Guyton, 115 Ind. 450, 7 Am. St. 458; Tarrant v. Webb, 18 C. B. (86 Com. Law) 797; Lawler v. Androscoggin R. Co., 62 Me. 463; Gilman v. Eastern R. Corp., 10 Allen 233;
The complaint contains all of the allegations necessary to bring the case within the rule. It properly states that the injury resulted to the plaintiff because the master did not exercise reasonable and proper- care in selecting a competent servant, and in retaining him after his incompetency became known. Wood’s Law of Master & Serv. (2nd ed.), §419, p. 819. As the incompetency of the fellow servant was alleged to be unknown to the plaintiff, it cannot be said that he assumed the risk incident to such incompetency, nor was the wrongful employment of incompetent fellow servants one of the common and obvious hazards of the business in which the plaintiff was engaged.
The first paragraph of the complaint was sufficient, and the court erred in sustaining the demurrer to it. The second paragraph was substantially the same as the first, and the demurrer to it should have been overruled. Judgment reversed, with instructions to the court to overrule the demurrer to each paragraph of the complaint, and for further proceedings in accordance with this opinion.