61 Ind. App. 146 | Ind. Ct. App. | 1916
This action was commenced by appellee against appellant to recover damages for personal injuries. Appellant has appealed from a judgment in.appellee’s, favor, and assigns as errors for reversal, the overruling. of its, demurrer to the
The material averments of the amended complaint on the question of negligence are that sometime before the date on which the accident occurred, appellee was a servant in the employ of appellant as a section hand, engaged with a number of other section men in maintaining the roadbed and tracks of appellant. They were employed by and were subject to the orders of another employe, known as the section foreman. Many of the section men lived at Mooresville, Indiana, and for the purpose of transporting the laborers to and from their place of work appellant furnished said section men with a handcar, and “about twelve men so employed were compelled to ride to and from their work on one handcar furnished as aforesaid and the ear was overcrowded with men and not sufficient room for all of said employes to safely ride, all of which the defendant knew and which plaintiff did not know, and that said handcar so furnished by the defendant for the use of said employes on the day of the hereinafter alleged injury was old, worn and defective and unsafe in this, to wit, the axles were badly worn and the boxing surrounding said axles of said car and all the parts of said handcar were worn loose and defective, so that when said car was being driven and brought to a sudden halt, the boxing would drop down and forward and throw the bed of the car on which the men rode forward with a lurch, all of which the defendant well knew or by the exercise of reasonable diligence and inspection might have known, and the plaintiff did not know of said defective condition of said handcar at said time or prior thereto. On the-day of September, 1908, while he was in the employ of the defendant as aforesaid, and was being transported from the
. While this pleading in many respects falls short of being a model, we are satisfied that the averments are sufficient to, show the existence of the relation of master and servant, a duty to furmsh
Note. — Reported in 111 N. E. 637. As to duty of master to provide safe place for servant to pass to and from work, see Ann. Cas. 1913 E 1033. As to master’s liability for injury to servant by defect in handcar, see 54 L. R. A. 128, 172. As to the question of relation of the maxim of volenti non fit injuria as a defense unless servant’s knowledge of risk is shown, see 47 L. R. A. 162. See, also, under (1) 26 Cye 1182, 1397; (2) 26 Cyc 1196, 1447, 1454; (3) 38 Cye 1576; (4) 38 Cye 1617, 1711.