American Rolling Mill Co. v. Hullinger

Decision Date26 June 1903
Docket Number20,100
Citation67 N.E. 986,161 Ind. 673
PartiesAmerican Rolling Mill Company v. Hullinger
CourtIndiana 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.


Rollin Warner and A. W. Brady, for appellant.

G. H Koontz, for appellee.


Gillett, J.

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: "It is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader general application, and which is expressed in the maxim volenti non fit injuria. The reason on which it is founded is, that, whatever may be the master's general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is."

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): "That every railroad or other corporation, except municipal, operating in this State, shall be liable in damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition. Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform. Third. Where such injury resulted from the act or omission of any person done or made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf. Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, roundhouse, locomotive engine, or train upon a railway, or where such injury was caused by the negligence of any person, co-employe or fellow servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, co-employe or fellow servant, at the time acting in the place, and performing the duty of the corporation in that behalf, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct; but nothing herein shall be construed to abridge the liability of the corporation under existing laws." 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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