47 Ind. App. 396 | Ind. Ct. App. | 1911
— This was an action by appellee against appellant to recover for an injury to his person. The complaint was in two paragraphs, to each of which a demurrer was overruled. A general denial was filed, and upon issues thus formed there was a trial by jury and a general verdict for appellee, with which answers to interrogatories were returned. Judgment was rendered upon the verdict in favor of appellee, and from this judgment this appeal is prosecuted. Under the errors assigned, the ruling of the court on the demurrer to each paragraph of the complaint is here presented. The material allegations of the first paragraph of the complaint are, in substance, as follows: Plaintiff says he was employed by defendant to’ work in defendant’s factory as a laborer, and that the rolling-mill and disc-mill are separated by a space of twenty feet; that ears run on a track, are used by defendant company for the purpose of conveying iron, steel and other material from the rolling-mill to the disc-mill; that the track is built from the rolling-mill to the disc-mill upon an incline; that said cars are run from the disc-mill back to the rolling-mill by reason of the grade or incline; that while plaintiff was employed by defendant in cleaning up around the shears of one of the machines used in the rolling-mill, defendant negligently and carelessly permitted one of its cars to run down from the disc-mill, on the track used as aforesaid, at a high rate of speed, and without giving any warning whatever, and said car ran against plaintiff; that heretofore defendant had always required a signal of warning to be given when cars were run from one factory to the other, but upon the occasion of
The second paragraph differs from the first in the negligence charged against defendant. The charging part of this paragraph is as follows: “Plaintiff further says that on November 19, 1906, while employed by defendant cleaning up around the shears of the machines used in the rolling-mill and factory, defendant negligently, carelessly and wrongfully permitted one of its said cars to run down from the disc-mill, on the track used as aforesaid, without having it equipped with brakes or other safety appliances to keep it from starting down said incline at a high rate of speed, and without giving any signal of warning whatever, and that said car ran against, upon and over this plaintiff; * * * that defendant unlawfully, wrongfully, carelessly and negligently permitted the cars used as aforesaid to be run and operated in its said factory without providing them with brakes with which to lock the wheels, or with other safety appliances with which to prevent said cars from running down said incline as aforesaid; that the cars used as aforesaid are composed of iron, are very heavy, and are operated upon a track composed of iron rails, and that said car was not, at the time of the injury aforesaid, equipped with brakes or any other safety appliances to fasten the wheels of said car so as to prevent its starting down said incline, and that defendant was fully aware, and had been for many months
There are also in this paragraph practically the same allegations with reference to the notice of warning, and,th-0 failure to give such warning, that are in the first. It will be observed that appellee does not allege in either paragraph that he did not know that appellant’s track was constructed on an incline from the rolling-mill to the disc-mill, and that the cars operated thereon were not equipped with brakes or other safety appliances, and on account of this omitted allegation appellant insists that each paragraph is insufficient. The law upon this proposition is well settled, but whether this case calls for the application of the principle contended for by appellant is more difficult of determination.
In the case of Indiana, etc., Oil Co. v. O’Brien (1903), 160 Ind. 266, 270, the Supreme Court said: “It has been settled, by a long line of decisions of this and the Appellate Court, that in an action wherein it is sought to recover damages for the injury or death of a servant by reason of or on account of the negligence of the master in failing to furnish a safe place or premises in which the servant was required to work, or safe machinery, appliances, or implements with which he was required to perform the duties of his employment, then in such a case the complainant must negative in his complaint knowledge on the part of the servant of the unsafe condition of such premises, machinery, appliances, or implements, in order to show that the injured
“It is not enough, in such a case as this, to charge the defendant with negligent acts, whether of commission or omission; but it must also be shown, with reasonable cer
The considerations convince us that the court below erred in overruling the demurrer to each paragraph of the complaint.
To avoid any future question upon this phase of the case, we think it proper to suggest that facts should be alleged in
Judgment reversed, with instructions to the court below to sustain the demurrer to each paragraph of the complaint, with leave to appellee to amend, and for further proceedings not inconsistent with this opinion.