108 Ind. 1 | Ind. | 1886
The first error of which complaint is here made by appellant, the defendant below, is the overruling of its demurrer to the first paragraph of appellee’s complaint.
In this first paragraph, appellee alleged that appellant was a railroad corporation owning and operating a railroad over and across Porter county, Indiana; that, in the operation of its railroad, appellant ran a certain locomotive engine and construction train, composed of flat cars, used for hauling, gravel, etc., westward from Laporte, Indiana; that such locomotive and train of cars had been so used by appellant for five years before the commencement of this suit; that, on such train of cars, appellant had in its employ a large number of hands who resided at different points along its railroad, and were conveyed by such train to and from their places of labor, night and morning; that appellant had in its employ, for a year pi’ior to the 13th day of August, as engineer of the locomotive engine used to propel such construction train, one-Pool who was habitually careless- and negligent in the discharge of his duties as such engineer, during all of said time, and was not possessed of sufficient skill to run said engine in an ordinarily careful and prudent manner, of all which appellant had due notice but negligently retained said Pool in its employ as such engineer.
Appellee further alleged that some time during July, 1883, he being wholly unacquainted with said Pool, and with appellant’s employees in charge of such construction train, entered the service of appellant as one of its laborers or work-hands upon such construction train, and as a track repairer of its road-bed; that on or about such 13th day of August, 1883, the appellee, while in appellant’s employ, upon such construction train, was standing upon one of the cars of such train,.
It is claimed by appellant’s counsel that this paragraph of complaint was insufficient, and the demurrer thereto ought to have been sustained, for two reasons, namely:
1. Because appellee has not averred therein that he did not know of Pool’s negligent habits at the time he entered appellant’s service.
2. Because appellee has failed to aver any excuse for his remaining in appellant’s service after he knew, or should have known, of Pool’s negligent habits.
The general rule of law, recognized and acted upon in’ many of our decisions, is, that the master is not liable in damages to an employee for an injury caused or occasioned by the negligence, whether of omission or commission, of a. co-employee or fellow servant. The liability to injury, resulting from the negligence of his co-employees, is one of the risks which each employee, engaging with others in the service of a common master, takes upon himself. Such a liability to injury is a hazard incident to the nature of the service into which the employee enters, and against which the master is not an insurer, in the absence of an express contract to that effect. ISTor is the master rendered liable by the
Where, therefore, as here, the servant shows- in his complaint that the injury, for which he sues the master, was caused or occasioned by the negligence of his fellow servant, he must also allege in his complaint, either that the master had not exercised ordinary care and prudence in the employment of such fellow servant, or that it had retained him in its service, after it had received notice that he was negligent in the discharge of the duties of his position. This much must be stated, in relation to the negligence of the master; and with respect to himself, in such a case, the injured servant must aver in his complaint that, at the time he entered the master’s service, he had no knowledge of the negligent habits of the fellow servant, through whose negligence he has alleged that he was injured.' It is for the want of this last averment, or its equivalent, that the first paragraph of appellee’s complaint in the case at bar was fatally insufficient. If the appellee knew, at the time he entered appellant’s service (and we can not presume that he did not know, in the absence of any averment to that effect), that his fellow servant, Pool, wad habitually negligent in the discharge of his duties as an engineer, and was not possessed of sufficient skill to run an engine in an ordinarily prudent manner, it must be held, we think, that he voluntarily took upon himself all the risks incident to, or growing out of, Pool’s negligence and lack of skill in the management of his engine. Appellee has sued the appellant to recover damages for an injury, alleged by
The appellee alleged in the first paragraph of his complaint, on the point under consideration, that he was “ wholly unacquainted with said Pool.” Tjiis averment by no means supplies or meets the objection, urged by appellant’s counsel, to the sufficiency of the first paragraph of appellee’s complaint. The fact that appellee was wholly unacquainted with Pool does not show, nor tend to show, that he was not fully informed of Pool’s negligent habits and lack of skill as an engineer at the time he entered appellant’s service as Pool’s fellow servant. We are of opinion, therefore, that appellant’s first objection to the sufficiency of the first paragraph of appellee’s complaint is well taken and must be sustained.
Appellant’s counsel also insist in argument that the first paragraph of complaint was bad on the demurrer thereto,
In the ease in hand, appellee has not alleged, nor attempted to allege, any excuse whatever for his remaining in appellant’s service after he knew, or ought to have known, of Pool’s negligent .habits. We think, therefore, that appellant’s second objection to the sufficiency of the first paragraph of appellee’s complaint herein is also well taken, and ought to have been sustained.
. For the reasons given we are of opinion that the trial court ■clearly erred in overruling appellant’s demurrer to the first paragraph of appellee’s complaint herein. This conclusion requires a reversal of the judgment below, and, therefore, renders it unnecessary for us to consider or decide now any of the questions discussed by counsel, arising under the alleged error of the court in overruling the motion for a new trial.
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the demurrer to the first paragraph of complaint, and for further proceedings not inconsistent with this opinion.
Mitchell, J., took no part in the decision of this cause.