American Rolling Mill Co. v. Hullinger
Decision Date | 26 June 1903 |
Docket Number | 20,100 |
Citation | 67 N.E. 986,161 Ind. 673 |
Parties | American Rolling Mill Company v. Hullinger |
Court | Indiana Supreme Court |
Rehearing Denied January 13, 1904, Reported at: 161 Ind. 673 at 681.
From Delaware Circuit Court; J. G. Leffler, Judge.
Action by James H. Hullinger against the American Rolling Mill Company. From a judgment for plaintiff, defendant appeals.
Reversed.
Rollin Warner and A. W. Brady, for appellant.
G. H Koontz, for appellee.
Suit for personal injury, instituted by appellee against appellant. The complaint of the former seeks to charge appellant with negligence because of the omission of its master mechanic, and the first question is whether it appears from the complaint that said master mechanic was not a co-servant, but was a person for whose acts the appellant was responsible. It is charged in said pleading not only that said master mechanic had full charge of the work at which appellee was engaged at the time of his injury, but that he had been "intrusted by said defendant with the duty of keeping the ways, works, plant, tools, and machinery connected with and in use in the business of said defendant corporation in proper condition." The complaint shows that the master mechanic was a vice-principal, and in that particular, at least, facts are stated on which a common law liability may be based. Southern Ind. R. Co. v Martin, 160 Ind. 280, 66 N.E. 886.
The further question that is presented concerning the complaint is whether it should state facts showing that appellee had not assumed the risk, which in this case arose from leaving a bent or truss leaning against a gin pole without being held in position by guy-ropes or other means of support. It is admitted by counsel for appellee that this showing would have been necessary, according to the course of decision in this State, in stating a liability for negligence between master and servant not resting upon any statute. Louisville, etc., R. Co. v. Sandford, 117 Ind. 265, 19 N.E. 770; Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266, 65 N.E. 918, and cases there cited.
At the basis of every well-grounded action for negligence must lie a legal duty to use care. Brooks v. Pittsburgh, etc., R. Co., 158 Ind. 62, 62 N.E. 694. Otherwise stated, a complaint for negligence should exhibit a duty owing. Black, Law & Prac. in Accident Cas., § 150. Notwithstanding the duties the master owes the servant, yet, at common law, if it appears that the latter had assumed the risk, there is no liability for negligence. This is but an application of the maxim, volenti non fit injuria, which states a principle of very broad application in the law. The master may not have performed the duty required of him, but if the servant knows that such duty has not been performed, and appreciates the extent of the risk that he thereby runs, or should have known and appreciated the same, he ordinarily assumes the risk, and this absolves the master from liability for the resulting injury. Indiana, etc., Oil Co. v. O'Brien, supra; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N.E. 464, 31 Am. St. 537; Miner v. Connecticut River R. Co., 153 Mass. 398, 26 N.E. 994; Sullivan v. India Mfg. Co., 113 Mass. 396; Mundle v. Hill Mfg. Co., 86 Me. 400, 30 A. 16.
As said in Fitzgerald v. Connecticut River Paper Co., supra:
Appellee's counsel contends that a cause of action is stated under the first section of the act of March 4, 1893 (Acts 1893, p. 294), known as the employers' liability act. Counsel for appellant seek to meet this contention by the claim that said section is unconstitutional as applied to corporations other than railroad, and by the further claim that the common law doctrine of assumed risk is to be read into said statute, thereby making such doctrine a part of the statute. It is thoroughly settled that this court will not determine a constitutional question if it can perceive another ground on which it may properly rest its decision, and therefore we first inquire whether the second contention of appellant's counsel is well founded. Section 1 of said act (§ 7083 Burns 1901) is as follows (omitting the enacting clause): Although § 2 of said act was repealed in 1895 (Acts 1895, p. 148), yet it may be considered as evincing that it was not the intent of the legislature to create a liability as unrestricted as § 1 might seem to imply. Said § 2 is as follows: "Neither an employe nor his legal representative shall be entitled under this act, to any right of compensation or remedy against the corporation in any case where the injury results from obedience to any order which subjects the employe to palpable danger, nor where the injury was caused by the incompetency of the co-employe and such incompetency was known to the employe injured; or such injured employe, in the exercise of reasonable care might have discovered such incompetency; unless the employe so injured gave or caused to be given information thereof to the corporation or to some superior entrusted with the general superintendence of such co-employe, and such corporation failed or refused to discharge such incompetent employe within a reasonable time, or failed or refused within a reasonable time, to investigate the alleged incompetency of the co-employe or superior, and discharge him if found incompetent."
The English act (Chap. 42, of 43 and 44 Victoria), on which nearly all of the employers' liability acts of this country are founded, resembles the first section of the Indiana act in the subdivisions; but, instead of providing for a liability in its opening language, the former act provides, after the enumeration of the subdivisions, a remedy to the employe to the same extent "as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work." It was held in Thomas v. Quartermaine, L. R. 18 Q. B. D. 685, which involved a defect in a master's premises, that ...
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American Rolling Mill Co. v. Hullinger
...161 Ind. 67367 N.E. 986AMERICAN ROLLING MILL CO.v.HULLINGER.1Supreme Court of Indiana.June 26, Appeal from Circuit Court, Delaware County; Joseph G. Leffler, Judge. Action by James H. Hullinger against the American Rolling Mill Company. From a judgment for plaintiff, entered on overruling a......
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