134 Ind. 625 | Ind. | 1893
This was an action commenced in the Tippecanoe Circuit Court, by the appellant, against the appellee, for the recovery of damages on account of a personal injury.
The complaint consists of two paragraphs. So-much of the first paragraph as is material to the legal question involved in the case, alleges, substantially, that, on the 23d day of July, 1888, the appellee was engaged in hauling sand and gravel by means of horses and wagons, from a gravel pit; that the pit had theretofore been worked, and a large quantity of sand and gravel removed therefrom, by the appellee, so that an embankment, on the east side, existed, which was of the height and depth of fourteen feet from top to bottom; that the embankment was nearly perpendicular, and
The second paragraph of the complaint contains all the allegations found in the first paragraph, and in addition thereto it alleges that Keefe was an habitual drunk
The court sustained a demurrer to each paragraph of the complaint, and this ruling is assigned by the appellant as error.
The only question for our consideration relates to the propriety of this action of the circuit court.
Where a servant enters upon an employment which is, from its nature, necessarily hazardous, he assumes all the usual risks and perils incident to the service. In such case it is- settled that there is an implied contract on the part of such servant to waive any right of action against the master on account of an injury resulting from the risks necessarily incident to the service upon which he enters.
Where the danger is alike open to the observation of all, both the master and the servant are upon an equality, and the master is not liable for an injury resulting from the dangers incident to the business. Vincennes, etc., Co. v. White, 124 Ind. 376; Griffin v. Ohio, etc., R. W. Co., 124 Ind. 326; Rasmussen, Admr., v. Chicago, etc., R. W. Co. (Iowa), 21 N. W. Rep. 583; Pederson v. City of Rushford (Minn.), 42 N. W. Rep. 1063; Olson v. McMullen (Minn.), 24 N.W. Rep. 318; Anderson v. Winston, 31 Fed. Rep. 528; Naylor v. Chicago, etc., R. W. Co., 53 Wis. 661.
The condition of the gravel pit mentioned in the complaint was open alike to the appellant and the officers of the appellee. The liability of the embankment of sand and gravel to fall during the process of mining out gravel and sand was, we think, one of the risks incident to the service in which the appellant was engaged.
For these reasons, the court did not err in sustaining a demurrer to the complaint.
Judgment affirmed.’