Stone v. Bedford Quarries Co.

156 Ind. 432 | Ind. | 1901

Dowling, C. J.

This was an action for a personal injury. Complaint in three paragraphs. Demurrer, to each paragraph, separately, and to the entire.complaint, for, want of facts. Demurrer to whole complaint sustained, and judgment for appellee. The decision upon the demurrer is assigned for error. ’ ■

, The tedious and unnecessary prolixity of the complaint precludes its insertion here. In its twenty-seven pages of typewritten matter, which could easily have been reduced to five, it alleges that .the defendant was a corporation engaged in the business of quarrying and shipping stone at, a, point near Bedford, in Lawrence county, Indiana, and that the-plaintiff was, and for a long-time previous had been, employed by it as a carpenter and laborer, his duties consisting chiefly in placing stone in a position for permanent bracing when loaded on cars, and in bracing and chocking stone ■ on cars.so that the upright slabs would ride steadily while in process of transportation by rail; that on October 13, 1898,, appellant was ordered by the foreman of appellee to place in position,and brace fox safe transportation a group of stone slabs,, eight feet long, four inches thick, and thirty inches wide,i which had been loaded upon the north end-of a flat car, and temporarily: and insufficiently braced in an upright position-; that while -he was engaged, with his assistants in this-work, without notice or warning to him, another lot of stone , slabs was, by direction of appellee’s foreman, let down upon-the-south-end of the-flat car in the ordinary way, and with ordinary force, but-which shook and jarred the car so that, because of the insufficient temporary bracing, the stone on the north end of the car, where appellant was at work, fell, over upon his leg, breaking it, etc.; that the appellant was without.fault; that the injury was due solely to the negligence of the appellee; and that by reason of the injury, appellant sustained damages to the amount of $10,000,

The appellant was employed to perform labor, which from the description given- of it in the' complaint was hazardous • in -a single particular. He was required to take groups of slabs of sawed -stone, held in an upright position on flat cars by means-of slight and temporary supports, and brace them firmly so that they would not fall over while being carried on the cars. The general risk of this employment, from the liability of the upright slabs to fall over before they could be firmly secured by the labor of the appellant, was obvious, and of such a nature that the appellant must be presumed to have contracted for employment with a view to such risk. It was constantly and inseparably incident to the business in which he was engaged, and the fall of. the stories was liable to occur at any time from any jar,. shock, or movement of the car, however occasioned. This was the very result, which the appellant was employed to. prevent. . We think it.evident that the risk, not only of suca-, accidents but of the various causes which might produce them, -was assumed by the- appellant. . - -

It is ;clear from- the averments of the complaint -that the- insufficiency of the Temporary • bracing, the fact that some -of the slabs were broken, and that a slight jar of. the car would cause the stones to fall over, were apparent to appellant, and known by'him, when he entered upon his work on the car. It is also evident that the car was only' partially loaded, and that the appellee had the right to, and might, before the appellant completed his work, pla.ee other-lots of stone upon it. If appellant.voluntarily exposed'him- , self .to an. apparent danger necessarily incident to his .employment, he .cannot, complain if he suffered the natural and probable consequences..of such exposure. Whether it was. usual to. wait^until the work of bracing one lot of stone was finished before putting another .on the car, or not, made no difference. The employer was under'no obligation so to de-, lay the loading of the .car,-and owed the appellant no.'Such duty.. The.ease was not affected by the act of 1893, nor by the act of February 17,-1899. The three paragraphs contain substantially, the same averments. No cause of action was stated in' any of them, 'and the demurrer to the entire complaint -was’ properly sustained. City of Ft. Wayne v. Christie, ante, 172, and cases cited.

.Judgment affirmed¡'