Appeal from circuit court, Henry county; E. H. Bundy, Judge.
McCABE, J.
This was an action by the appellee against the appellant for a personal injury. The complaint was in three paragraphs, a demurrer to each of which was sustained as to the second, and overruled as to the first and third paragraphs. Answer by general denial, trial by jury, verdict for appellee, on which judgment was rendered over a motion for a new trial. The errors assigned here, and not waived by failure to argue them in appellant's brief, are overruling the demurrer to first and third paragraphs of the complaint and overruling the motion for a new trial. The material allegations of the first paragraph of the complaint are as follows: “That the plaintiff entered the service of said defendant as a track hand in 1868, and continued in said service over seventeen years, to the 27th day of December, 1886. That throughout said period he served as section boss of section number eleven, and his duty, with the assistance of a gang of men who were under his control, consisted in caring for the track generally, cutting weeds, tamping ballast, watching for and removing impediments from the track, walking the track, putting in new ties, removing broken or worn rails, and any other labor required in the care and preservation of the track. Such were the duties for which he was hired, and which he agreed to perform. That at the same time said defendant was managing, running, and operating locomotive engines and cars of said defendant over and upon the railroad track of said defendant. That plaintiff had nothing whatever to do with the management, running, and operating said locomotive engines of said defendant, nor had he any right, power, or authority to give any orders or directions in reference to the running, managing, or operating of the locomotive engines, but that he was hired to and he engaged to perform only the ordinary duties of a section boss or employe in charge and control of the track or section number eleven of defendant's road. That on the 27th day of December, 1886, the defendant, by one H. Pierce, then acting in the capacity of supervisor of the division from Hamilton, Ohio, to Indianapolis, Ind., of defendant's railroad, a servant of the defendant, and having full control and charge of said railroad in its care and repairs, with full control of all hands and men employed upon and in the care and repairs of the road, with power of discharge and employment, and having on said 27th day of December, 1886, full charge and control of a construction train running upon the road of defendant for the purpose of distributing steel rails upon the line thereof, the object being to lay the track a new with steel rails, directed and required and compelled the plaintiff to assist in unloading steel rails from the construction train aforesaid, such employment being then and there wholly different from and outside of the service he was employed to perform and much more hazardous than the work he had engaged and promised to do. That the engineer in charge of the engine hauling said train on said day, James Montgomery, was a careless, inexperienced, reckless, incompetent, and untrustworthy engineer, and was known to be such by defendant when he was hired as an engineer by defendant, and long before plaintiff received his injuries said Montgomery was known to defendant to be an incompetent, reckless, careless, and untrustworthy engineer, and, further, he might have been known to defendant to be such an engineer by the exercise of ordinary care and attention in the operation of the railroad, said Montgomery having shown his incompetency, carelessness, recklessness, and inexperience on many occasions prior to said day. That defendant did not exercise ordinary care and prudence in the employment of said engineer, and retained him in her service after she had notice of his said incompetency, and long after she might have known of such incompetency by ordinary care and attention, and prior to plaintiff's injury That plaintiff did not know, and had not the means to know, prior to said 27th day of December, l886, of such incompetency. That the weather was very cold, and the season of the year entirely unfitted for the work of distributing steel rails. That the steel rails and car on which they were loaded were all covered with ice and snow, which added greatly to the hazard, peril, and hardship of the duty to be performed. That while so engaged, and wholly without fault or carelessness or negligence on his part, and while standing at the forward end of the car on which the steel rails were loaded, and while engaged in the act of turning the rails over, so that they could be taken hold of with tongs, suddenly, and without any warning by whistle or bell or voice, the train was jerked violently forward by the engineer, James Montgomery. That plaintiff was thrown off his balance, but managed to throw one foot across on the side board of the tender in such a way as to catch, when suddenly, and without warning of whistle or bell or voice, the engine was checked back by said Montgomery, and the plaintiff was again thrown off his balance, and fell down under the train with both legs on the rail between the wheels of the forward truck. That he instantly, with all his power, endeavored to pull his legs from under the car, but before he could succeed said engineer again jerked the train forward, and the wheel passed over plaintiff's left leg between the knee and foot, crushing and mangling the limb in such a manner that amputation was necessary, and amputation of his left left below the knee was necessarily performed by the surgeons in charge. That all of said acts of said engineer in the management of said engine were careless, reckless, unskillful, and wholly incompetent. That said injury was inflicted on him wholly without fault or negligence on his part. That plaintiff was caused to suffer great pain, and rendered a cripple for life, helpless, and unable to earn a support for himself and family.” The third paragraph is substantially the same, as appellant's counsel concede. There are two respects in which the sufficiency of the complaint may be considered, -one relating to appellant's negligence in employing an incompetent engineer, with knowledge thereof, and retaining him after notice of his negligence and incompetency, through which the alleged injury was brought about; and the other, the wrongful direction of appellant, through one of its employes clothed with authority so to do, by which appellee was compelled to undertake the discharge of duties other and different and more dangerous than those he had agreed to perform, through which the injury was brought about. These are elements of separate and distinct causes of action, though no question is made as to the propriety of uniting them in a single paragraph. The appellant's counsel in their brief have confined their attack on the complaint to the last point above mentioned, namely, the act of ordering appellee into a more dangerous service than that he had agreed to perform. But if the paragraphs are each good and sufficient to withstand a demurrer in regard to the alleged negligence in employing and retaining the engineer in service, with knowledge of his incompetency, then we need not inquire into the other question. The case of Railway Co. v. Stupak, 123 Ind. 210, 23 N. E. Rep. 246, was very much like this, and the complaint there in regard to the negligence of the railway company in the employment of the engineer was almost exactly like this, and at page 222, 123 Ind., and page 250, 23 N. E. Rep., this court said: “It is true appellee and Pool, the engineer, were fellow servants, and that ordinarily the master is not liable to his servant for an injury occasioned by the negligence of a fellow servant. But it is equally well settled that the master is bound to employ none but careful servants knowingly, and that where he negligently employs a careless or negligent servant, or negligently keeps in his employment a negligent or careless servant, after notice of such carelessness or negligence, he is liable to one of his servants injured by the negligence or carelessness of such servant;” citing in support thereof Car Co. v. Parker, 100 Ind. 181; Bogard v. Louisville, etc., Ry. Co., Id. 491; Robertson v. Railroad Co., 78 Ind. 77; Capper v. Railroad Co., 103 Ind. 305, 2 N. E. Rep. 749; Boyce v. Fitzpatrick, 80 Ind. 526;Coal Co. v. Cain, 98 Ind. 282;Manufacturing Co. v. Millican, 87 Ind. 87; Railway Co. v. Collarn, 73 Ind. 261;Railway Co. v. Johnson, 102 Ind. 352, 26 N. E. Rep. 200; Pennsylvania Co. v. Roney, 89 Ind. 453. It is alleged that the engineer Montgomery was a careless, inexperienced, reckless, incompetent, and untrustworthy engineer, and was known to be such by defendant when he was hired as an engineer by defendant prior to plaintiff's injury, and that appellee was ignorant of that fact. This statement of facts brings the case within the well-recognized exception to the general rule that the master is not liable for injuries to one of his servants resulting from the negligence of a fellow servant engaged with him in the same department of the master's service or business. See, also, Railway Co. v. Stupak, 108 Ind. 1, 3 N. E. Rep. 630; Railway Co. v. Dailey, 110 Ind. 75, 10 N. E. Rep. 631; Spencer v. Railway Co., 130 Ind. 181, 29 N. E. Rep. 915; Rogers v. Leyden, 127 Ind. 50, 26 N. E. Rep. 210. In Railway Co. v. Harney, 28 Ind. 28, the complaint, like the present, contained both elements of a cause of action, and though no question was made...
