American Rolling Mill Co. v. Hullinger

• Decision Date: 13 January 1904
• Docket Number: 20,100
• Parties: American Rolling Mill Company v. Hullinger
• Court: Indiana Supreme Court

69 N.E. 460

161 Ind. 673

American Rolling Mill Company v. Hullinger

No. 20,100

Supreme Court of Indiana

January 13, 1904

Original Opinion of June 26, 1903, Reported at: 161 Ind. 673.

OPINION

Gillett, C. J.

In the brief on behalf of appellee in support of his petition for a rehearing his counsel earnestly insists that we erred in adjudging the complaint insufficient because of the omission to allege facts showing that the risk which eventuated in appellee's injury had not been assumed by him. Counsel for appellee omits to state whether the complaint attempts to show a common law liability, or whether it is based on the employers' liability act, but he now contends for the sufficiency of said pleading on both grounds. We shall briefly consider the points made, and shall first examine the question as to a common law liability.

The complaint shows that appellant was engaged in the construction of a large building; that the work was being done under one Krick, whom we held in the original opinion was shown to be a vice-principal, according to the averments of said complaint. It is further alleged therein that appellee was working under said Krick; that it became necessary to raise a heavy bent or truss, of a triangular shape, into position on the plates of said building; that said work was being prosecuted by the aid of a mechanical appliance known as a gin pole; that pursuant to the direction of said Krick appellee and a number of his co-employes raised said bent so that it rested on its base, with its apex slightly leaning against said gin pole; that thereupon said Krick carelessly and negligently directed the plaintiff to tie a rope on the base of said bent, and carelessly and negligently omitted to cause said bent to be supported by guy-lines or other means while appellee was tying said rope but carelessly and negligently ordered and directed one Edwards to untie said guy-lines and distribute them equally on each side of said bent, which order he obeyed; that appellee did conform to and obey said order given to him, and while he was in a stooping position, having just tied said rope and undertaken to fasten a hook attached to a block and tackle in the loop of said rope, as he was directed to do by said Krick, said bent, owing to the swaying of the heavy ropes of said block and tackle or the swaying of the gin pole, or both, or some other cause unknown to appellee, fell and that appellee was injured in his effort to escape.

It will be observed that it is not shown whether appellee or Edwards first performed the particular task assigned him, and it does not appear that appellee did not hear the order given to Edwards, and have an opportunity to escape before it was executed. We have, then, a case where it is made to appear that it was negligent to leave the bent leaning against the gin pole without other support, and yet there is no suggestion that appellee did not know of the situation and of the extent of the danger, or that he relied on the direction of said Krick as amounting to an implied representation of safety. It is true that there is a disjunctive statement suggesting that the bent might have fallen from a cause unknown to appellee, but, if it fell from either of the causes expressly stated, we may infer that, so far as knowledge was concerned, he was as well advised of the danger as the master's representative could have been expected to be. This is not a case where the direction of the vice-principal can be said to have taken the servant out of the course of his employment, for the silence of the complaint upon the point permits us to infer that the details of his work only varied to the extent that the work of construction progressed.

At least, as applied to cases where it may be inferred that the danger had become one of the assumed risks of the employment, it has been many times held that the complaint of the servant must aver facts showing that the risk was not one which he had assumed. Lake Shore, etc., R. Co. v. Stupak, 108 Ind. 1, 8 N.E. 630; Indiana, etc., R. Co. v. Dailey, 110 Ind. 75, 10 N.E. 631; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265, 19 N.E. 770; Wabash, etc., R. Co. v. Morgan, 132 Ind. 430, 31 N.E. 661; Big Creek Stone Co. v. Wolf, 138 Ind. 496, 38 N.E. 52; Peerless Stone Co. v. Wray, 143 Ind. 574, 42 N.E. 927; Potter v. Knox County Lumber Co., 146 Ind. 114, 44 N.E. 1000; Cleveland, etc., R. Co., v. Parker, 154 Ind. 153, 56 N.E. 86, and cases cited; Chicago, etc., R. Co. v. Glover, 154 Ind. 584, 57 N.E. 244; Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266, 65 N.E. 918; Williams v. Clough, 3 Hurl. & Nor. 258; Bogenschutz v. Smith, 84 Ky. 330, 1 S.W. 578; Buzzell v. Laconia Mfg. Co., 48 Me. 113; Coal & Car Co. v. Norman, 49 Ohio St. 598, 32 N.E. 857; Missouri Pac. R. Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044.

In Williams v. Clough, supra, a servant sued his master, alleging that the defendant had an unsafe ladder, and that well knowing that said ladder was unsafe, he wrongfully and deceitfully ordered and directed the plaintiff, as such servant, to carry corn up said ladder, and that the plaintiff, in obedience to said order, and believing said ladder to be fit and proper for use for the purpose aforesaid, and not knowing the contrary, did carry said corn up said ladder, and that while so doing, and by reason of such ladder being unsafe and defective, he fell, etc. It was objected that the declaration should have shown that the servant did not have the means of knowing that the ladder was unsafe, but the majority of the court were of the opinion that the declaration was sufficient. Bramwell, B., however, said: "I abide by the opinion I expressed in the case referred to, that a master can not be held liable for an accident to his servant while using machinery in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowledge as the master. I should be inclined to say that the declaration is good or bad, as it does or does not negative the servant's means of knowledge. That, however, is a mere question of special pleading. And, as the lord chief baron and my brothers Martin and Channell are of opinion that the declaration is good, it is not necessary that I should further inquire whether it ought to contain, or does contain, such an averment." In this State an allegation of a want of knowledge negatives imputed knowledge. Pennsylvania Co. v. Witte, 15 Ind.App. 583, 43 N.E. 319, and cases cited; Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N.E. 235.

Mr. Wood, in his work on master and servant, § 382, after stating some of the elements required to be made out by the servant in a suit against the master for negligence, says: "When this is established, he [the servant] is met by another presumption, the force of which must be overcome by him, and that is, that he assumed all the usual and ordinary hazards of the business. To overcome the force of this presumption he must show that the injury did not arise from an obvious defect in the instrumentalities of the business, or from a hazard incident to the business, but from causes that were previously unknown by him to exist, or from extraordinary causes and not from causes that he ought to have foreseen, and can be fairly said to have assumed, or some legal excuse for taking the risk, if known to him, which strips his act of the imputation of negligence and overcomes the presumption that he voluntarily took the risk upon himself." While it is true that the servant is not bound to anticipate that his master will, without warning, direct him to do an act that will expose him to serious peril, yet even such peril, if of obvious character, may become a part of the risks of the employment, if, with a knowledge of its nature and extent, the servant voluntarily undertakes it. As stated in one of the leading textbooks on the law of negligence: "If, however, the servant knows what the new dangers are, or if they are obvious to persons thus suddenly called to do such work, and he is able to appreciate the peril involved, and is not acting under such coercion as would in other cases excuse him, he assumes the risk of this new work, to the same extent as he did those of his regular employment." Shearman & Redfield, Negligence (5th ed.), § 186a.

It is required that a complaint...