56 Ind. App. 25 | Ind. Ct. App. | 1914
On August 8, 1908, Nathaniel W. Young, appellee’s decedent, as an employe of appellant, was engaged in painting an iron and steel railroad bridge, owned and used by appellant, as a part of its electric traction line, which bridge spanned Wild Cat Creek at a point about one mile east of the town of Dayton, in Tippecanoe County. On Sunday morning, August 9, the lifeless body of the decedent was found at the north side of the bridge partially submerged in the water of the creek. In addition to the marks of several minor injuries, there was on the body evidence of a severe electric burn, extending from the top of the left shoulder several inches down the back
The complaint is in two paragraphs, each of which was unsuccessfully challenged in the trial court by a demurrer. The rulings on the demurrers are properly presented in this court by assignment of errors. The sole objection to each paragraph is that it is asserted that there is no sufficient averment therein of nonassumption of risk by the decedent.
The facts alleged in the first paragraph in part are substantially as follows: That appellant was maintaining as a part of its equipment a trolley wire suspended over the center of the track, and about six inches below the under side of the top girders of the bridge, and also a high tension or feed wire, about two feet above the girders and near the north side of the bridge; that each of the wires was heavily charged with electricity, but that neither of them was insulated or covered, for the protection of those whose duty it was to work around them; that appellant knew that it was necessary to repair and paint the bridge from time to time, and that to that end it would be necessary for persons to work around and about the wires, but that it carelessly and negligently strung the wires in such a position that it was not possible or practicable for such persons to work upon the bridge without great danger of coming in contact with the uninsulated and highly charged wires; that appellant “carelessly and negligently failed and omitted to protect or cover said wires with insulating material, so as to render them safe to persons lawfully working on said bridge, and carelessly and negligently con
The second paragraph of complaint repeats most of the averments of the first paragraph, and alleges in addition that appellant negligently suffered the wires to sag and sway subject to the caprice of the elements. It alleges that by reason of the unprotected and uninsulated condition of the wires, there was danger of the electric fluid which they carried escaping therefrom, and into the body of any person who approached near the wires. Facts are fully averred respecting appellant’s knowledge, of the alleged dangerous position and condition of the wires, and that appellant knew that decedent was painting the bridge, and that it.would be necessary for him to approach near the wires and that thereby he would be in danger of coming in contact with the fluid likely to be caused to escape from the wires by his near approach thereto, and that appellant knew all the dangers and perils likely to result from electricity escaping from the wires. On the subject of the decedent’s nonassumption of risk, it is alleged in substance that decedent was a painter by trade and that he “was
One distinction between the first and second paragraphs of complaint is that the former alleges that decedent came in contact with one of the wires, and thereby received a charge of electricity, while the latter alleges that he merely approached near to the wires and thereby came in contact with electricity escaping from the wire. It is appellee’s construction of the second paragraph of complaint that decedent’s near approach to one of the wires caused the electricity to arc or leap therefrom through the intervening space to his body, and that thereby decedent received the charge that killed him.
In Fort Wayne, etc., Traction Co. v. Roudebush (1909), 173 Ind. 57, 88 N. E. 676, 89 N. E. 369, an instruction given contained the following language: “But an employe does not assume in his employment hazards, if any, which are the result of the negligence of the master.” The court there held that the instruction containing such language was erroneous, but that in the particular case, the error in giving it was harmless, for the reason that it affirmatively appeared that plaintiff’s decedent had neither actual nor constructive knowledge of the particular negligence of the master, or of the consequent hazard arising therefrom. The case is in harmony with the conclusion which we have reached, the court saying on page 64: “As a general rule, the servant is held to the assumption of all risks of the employment known to him, including those springing from the master’s negligence, unless such negligence consist in the violation of some statutory duty imposed for the safety of the employe. ’ ’
Por errors indicated in instructions given, the judgment is reversed, with directions to sustain the motion for a new trial.
Note. — Reported in 104 W. E. 780. As to care required of servant and his knowledge of danger in respect of his employment, see 98 Am. St. 313. As to servant’s assumption of risk of danger of electric shock, see 32 L. R. A. 353. On the general question of the servant’s assumption of risk, see 38 L. Ed. U. S. 391. For servant’s assumption of risk of danger imperfectly appreciated, see 4 L. R. A. (N. S.) 990. On the servant’s assumption of risk from latent danger or defect, see 17 L. R. A. (N. S.) 76. As to whether a servant may assume the risk of dangers created by the master’s negligence, see 4 L. R. A. (N. S.) 848; 28 L. R. A. (N. S.) 1215. See, also, under (1, 2) 26 Cyc. 1397; (6) 31 Cyc. 358; (7) 26 Cyc. 1513; (8) 26 Cyc. 1495; (9) 26 Cyc. 1177, 1205; (10) 26 Cyc. 1503; (11) 26 Cyc. 1496; (12) 26 Cyc. 1504.