100 P. 619 | Mont. | 1909
delivered the opinion of the court.
Action for damages for. a personal injury. From the amended complaint we gather the facts, alleged as the ground of recovery, as follows: The defendant corporation owns and conducts a foundry and machine-shop in the city of Butte. The plaintiff was, at the time he was injured, in its employ as a teamster, and in this capacity his office was to haul, from place to place about the premises, heavy machinery and castings whenever in the course of defendant’s operations it became necessary. On August 1, 1904, he was directed to move from the foundry to the machine-shop an iron easting weighing about fifteen hundred pounds. Having loaded it upon his wagon, and hauled it to the place designated in the machine-shop, he was engaged in unloading and lowering it to the floor. To enable him to do this he was furnished with an appliance consisting of a crane, blocks, and a chain. The process of unloading was intended to
The rule has been repeatedly announced by this court that in an action for personal injury the plaintiff is not required to allege his freedom from contributory negligence, but that its presence is a matter of defense. (Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852, and cases cited.) To this general rule is recognized the exception that when the complaint alleges facts from which, by fair interpretation, negligence on the part of the plaintiff, which Avas a proximate cause of the injury, must be inferred, it will be demurrable, unless the pleading alleges additional facts shoAving that he was nevertheless acting with due care. The same principles apply when freedom from liability is claimed by defendant on the ground that the plaintiff assumed the risk of the danger arising in the course of the employment in which he Avas injured. If the facts stated in his pleading fairly support the conclusion that he assumed the risk, it must be held not to state a cause of action. (Longpre v. Big Blackfoot Milling Co., ante, p. 99, 99 Pac. 131.)
It is contended by counsel for respondent that the allegation that the chain was wholly insufficient and unsafe, in that it was not sufficient in size to hold or bear the weight of the casting, furnishes conclusive ground for the inference that the plaintiff knew that it would be dangerous for him to use it, and hence that any inference of liability on the part of the defendant is excluded. A servant is conclusively presumed to have assumed the ordinary risks of the employment. (Revised Codes, sec. 5243.) This is a part of his contract of service. Beyond this
The allegation referred to does not import that, at the time he was directed to use the chain in question, the plaintiff had, or should have had, knowledge that its tensile strength was not
The judgment is reversed, and the cause is remanded to the district court, with directions to overrule the demurrer.
Reversed and remanded.