166 Ind. 321 | Ind. | 1906
—This action was brought by appellee to recover damages for a personal injury received while in appellant’s employ.
It is alleged that the court below erred in overruling (1) appellant’s" demurrer to the first paragraph of com
The sufficiency of the first paragraph of complaint is not seriously questioned, and no- error was committed in overruling appellant’s demurrer to the same.
The substantial averments of the second paragraph of complaint are as follows: The appellant on January 3, 1902, owned and' operated at the Town of Howell, on the line of its railroad, in the State of Indiana, machine and repair shops, where engines, cars and other equipments of said company’s railroad were manufactured and repaired. On said date plaintiff was in the employ of said company at and in one of the buildings of said shops as a sweeper. Plaintiff’s duties as such sweeper were to sweep the floor of the boiler room of said building. At the time aforesaid defendant had and operated, in said boiler room, work benches to which iron vises were attached, in which vises pieces of metal were fastened for the purpose of being hammered with hammers. At the time aforesaid, defendant negligently and carelessly permitted a defective and unsafe hammer to be in use at one of said benches, which said hammer had been for a long time prior thereto, and on said day was, used while in said defective and unsafe condition. Said hammer was defective and unsafe in this, to wit: said hammer was tempered too hard, was extremely brittle, and the edgés thereof were sharp and improperly dressed. The defective and unsafe condition of said hammer was at that time known to said company and unknown to the plaintiff. At the time aforesaid plaintiff, while in the proper discharge of his duties as such sweeper, was walking in and about one of said benches, to which there was a vise attached, in which vise there was at that time a piece of metal screwed. One of the employes of said company was at the time engaged in hammering on the piece of metal in said vise, and in doing said hammering was using said defective and unsafe hammer, which was unknown to the plaintiff. While
It is contended by appellant that this paragraph of complaint is fatally defective for the want of an averment that the employe who was using the hammer at the time of the accident was in the line of his duty as a servant of the appellant, or engaged in the prosecution of the master’s business. It is manifest that there was no latent peril in the mere presence of the inert hammer, alleged to have been defective, but the danger arose from a particular use of the instrument. The liability, if any in this action, must be predicated upon the use in its business of a defective tool, authorized either expressly or impliedly by appellant. It is averred in this paragraph of complaint merely that at the time of the accident one of the appellant’s employes was hammering with this defective tool a piece of metal in a steel vise. The duties of this employe and the purpose of the hammering are not stated, nor is it averred in general terms that the work in which he was engaged was in the line of his duty under his employment.
The judgment is reversed, with directions to sustain appellant’s demurrer to the second paragraph of complaint.