29 Ind. App. 62 | Ind. Ct. App. | 1902
Lead Opinion
Appellant commenced this action by complaint in two paragraphs, in which he seeks to recover damages on account of an injury received by him while in appellees’ employ. The first paragraph of the complaint, avers that his injury was caused by the alleged negligent
The only question here for consideration is the correctness of the ruling of the trial court in sustaining the demurrer to each paragraph of the complaint. It is averred in the first paragraph of complaint that appellee Charles E. Wehking is a contractor; that appellee Eesener is his superintendent of construction; that appellee Schulmier is his foreman; that on the 9th day of June, 1897, appellees were engaged in the construction of what is known as the “Park theater,” at the corner of Washington street and Capitol avenue, in the city of Indianapolis; that said building is of brick, and on said date the walls had been built up a little beyond the third story; that at each story there was constructed a temporary flooring, extending for a distance of eight feet from the walls of said building, and that a scaffolding was built out at a distance of five feet from said walls upon which was laid a platform for the use of the masons and builders in constructing said walls; that at the said time the brick used in constructing said walls was brought up to the third floor in wheelbarrows, loaded on a “hoist” eight feet square; that a temporary flooring was laid from the “hoist” at the third floor landing to the flooring which .extended around the walls as aforesaid; that appellant had been employed prior to this time in loading the wheelbarrows with brick and wheeling them upon the “hoist” at the ground floor, but that on the day that he received his injury he was directed by the foreman to leave his work on the first floor and come to the third floor and wheel the brick from the hoist along the temporary flooring to the second temporary flooring, which extended around the walls of the building; “that, in wheeling said brick, he pushed the wheelbarrow ahead of him, so that
AVheeling brick at the third story of the building was as much within the scope of appellant’s employment as wheeling brick at the first floor. Appellant was transferred from his work of wheeling the brick to the hoist on the first floor, and set to work wheeling brick from the hoist-on the third floor. The defects and danger complained of were open alike to the observation of both master and servant. The presence of the thing which resulted in appellant’s mishap, and the absence of the thing which appellant claims, if present, would have saved him, were open and obvious to both master and servant. It did not require even a casual examination to know these things. The unbroken line of authorities in this State is to the effect that where the danger is open alike to the observation of both master and servant, — where the servant has equal opportuMty with the master to see and know, or where the servant, in the exercise of reasonable care, looking to his own safety, would discover the defects or danger, — the risk is assumed. Wabash R. Co. v. Ray, 152 Ind. 392; Swanson v. City of Lafayette, 134 Ind. 625, 627; Big Creek Stone Co. v. Wolf, 138 Ind. 496, 499; Vincennes, etc., Co. v. White, 124 Ind. 376; Wolf v. Big Creek Stone Co., 148
We think the allegations of the first paragraph of complaint also show that appellant was guilty of negligence which contributed to his injury. The accident was caused solely by the striking of the brick with the wheel of the wheelbarrow. But the complaint wholly fails to aver that appellees, or either of them, knew that the brick was where it would or could be struck, or that it was, by either of them, negligently placed where it was. It is apparent from the averments of the complaint that appellant had passed by and over this same brick at least four times before he ran his wheelbarrow against it. Appellant was used to the work of wheeling brick on a wheelbarrow. Tie knew the unstable condition of a wheelbarrow piled high with brick, when being pushed along the way provided. He must have known that if he struck a brick with the wheel while pushing a loaded wheelbarrow, the wheelbarrow would be jerked violently either to one side or the other, and that his safety would thereby be endangered. We think the first paragraph of the complaint clearly bad.
The second paragraph of the complaint attempts to charge that the injury to appellant was wilfully done and
Wilfulness can not exist without purpose or design. It involves conduct which is quasi criminal. Parker v. Pennsylvania Co., 134 Ind. 673, 23 L. R. A. 552, and cases cited. It was said in Kalen v. Terre Haute, etc., R. Co., 18 Ind. App. 202, 63 Am. St. 343, that: “To be good as a complaint for wilful injury, it should show by some consistent form of averment that the injurious act was purposely done with the intent on the part of the doer to inflict wilfully and purposely the particular injury of which complaint is
The complaint in this case does not charge that the act by -which appellee was injured was wilfully done, with the intent, upon the part of appellees, wilfully and purposely to inflict the particular injury of which complaint is made. It falls far short of such a showing. If we should hold that the words “such person,” in the averment, “and with the wilful intent to injure such person as should undertake such employment,” meant appellant, still the wilful intent is directed to the doing of certain acts which it is alleged caused the place where appellant worked to become a place of hazard; it is not directed to the inflicting of the particular injurious act here complained of.
We think the trial court correctly sustained the demurrer of appellees to both paragraphs of appellant’s complaint. Judgment affirmed.
Comstock, O. J., Black, Robinson, and Wiley, JJ., concur.
Dissenting Opinion
Dissenting Opinion.
It is averred in the second paragraph of complaint that appellee Wehking was a contractor in Indianapolis ; that appellee Resener was his superintendent, and appellee Schulmier his foreman; that on June 9, 1897, Wehking was engaged in the construction of a building known as the “Park theater;” that, at the time named, the walls of such building, which were of brick, had been built up somewhat beyond the third story. The north end of the building is used as a stage, and was then open from the basement to the top of the wall, a distance of over fifty feet, except that at each story a temporary floor eight feet wide had been constructed next to the west, north, and east walls; that, on
To say that A wilfully killed B is not different, in substance, from saying that A wilfully pointed a loaded gun at B, and wilfully discharged the same, whereby B was killed. It is only necessary to charge in the complaint that the injurious act was purposely and intentionally committed with intent, wilfully and purposely, to inflict the injury
Section 341 Burns 1901, §338 TIorner Í901, is in part as follows: “The first pleading on the part of the plaintiff is the complaint. The complaint shall contain * * * Second. A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” I think that a person of common understanding ought to know that appellant intended to charge a wilful injury. The complaint is sufficient to apprise the defendant of the state of facts upon which the plaintiff expected to rely. Lincoln v. Ragsdale, 7 Ind. App. 354.
The opinion of the court is not understood as holding that the facts set out would be insufficient to establish wilful injury, as matter of fact, but that they are insufficient as a matter of pleading. The statute forbids such construction. §379 Burns 1901. To constitute a wilful injury, the act which produced it must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others and a willingness to inflict the injury complained of. Direct and positive intent is not always necessary to constitute a wilful act. Where the conduct indicates that degree of indifference to the rights of others which may be justly characterized as recklessness, the defendant is responsible for the injury he inflicts, irrespective of the fault that placed the plaintiff in the way of such injury. Palmer v. Chicago, etc., R. Co., 112 Ind. 250; Lake Erie, etc., R. Co. v. Brafford, 15 Ind. App. 655; Overton v. Indiana, etc., R. Co., 1 Ind. App. 436; Barr v. Chicago, etc., R. Co., 10 Ind. App. 433. Specific acts are stated in the pleading. If the character of the acts so stated are inconsistent with the charge, the use of the word wilful will not make it sufficient. Belt R. Co. v. Mann,
In considering the effect of the facts stated, there is no known warrant for failing to take into account those as to appellant’s ignorance, lack of capacity, and lack of experi-, ence. The averments are confessed as true by the demurrer. The quality of what a man does is largely dependent upon what he is and what he knows. Liad a child been sent into such a place, under such circumstances, who would refuse to consider its ignorance as bearing upon the quality of the man’s act who sent it there ? The master is liable for