130 Ind. 181 | Ind. | 1892
The sole question is whether the amended
It appears from the allegations of the foregoing complaint that the fact that the chain which held the valve was bi’oken was not the proximate cause of the injury. It was the starting of the engine whilé the appellant was under it that caused the injury complained of. Pease v. Chicago, etc., R. W. Co., 61 Wis. 163.
It was not negligence on the part of the persons under whose direction he was working to order him to clean the engine, which at the time was standing still on the track. They had the right to‘presume, although he was inexperienced in the work, that he would exercise some degree of care to avoid injury. They did not order him to go under the engine, or, for any thing that appears in the complaint, have any reason to suppose that he would place himself in that dangerous position. Atlas Engine Works v. Randall, 100 Ind. 293.
It is not alleged that he notified the engineer or other persons in charge of the engine that he was going under it, or that they had any notice or knowledge of that fact. Under these circumstances it does not appear that the employees in charge of the engine were guilty of negligence in putting it in motion; but it does appear that the appellant was guilty of negligence, contributing to the injury, in placing himself in this dangerous position without first warning the engineer. It was the assumption of a needless risk on his part. The general averment of want of negligence on his part is controlled by the specific allegations of fact which show that he
If there was negligence on the part of the employees of the company, either in ordering him to clean the engine, or of the engineer in starting the engine, it was the negligence of a co-employee, for which the appellee is not responsible. Wilson v. Madison, etc., R. R. Co., 18 Ind. 226; Gormley v. Ohio, etc., R. W. Co., 72 Ind. 31; Ewald v. Chicago, etc., R. W. Co., 70 Wis. 420; Pease v. Chicago, etc., R. W. Co., supra; Bergstron v. Staples, 82 Mich. 654.
The allegations charging that the servant in charge of the engine was not a skilled or practical engineer, but was incompetent, and that the defendant was negligent and careless in employing and retaining him in its service, falls short of taking the case out of the general rule, that the master is not liable for injuries caused by the negligence of a co-employee. In order to do so it must be alleged, in addition to the charges of negligence on the part of the master, that the plaintiff was himself ignorant of the incompetency of his fellow-servant. Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1; Lake Shore, etc., R. W. Co. v. Stupak, 123 Ind. 210; Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Rogers v. Leyden, 127 Ind. 50.
We are unable to find in this complaint any averment negativing knowledge on the part of the appellant of the alleged incompetency of the engineer.
We find no error in the record.
Judgment affirmed.