Clark County Cement Co. v. Wright

• Decision Date: 27 January 1897
• Docket Number: 2012
• Citation: 45 N.E. 817,16 Ind.App. 630
• Parties: CLARK COUNTY CEMENT COMPANY v. WRIGHT, ADMINISTRATOR
• Court: Indiana Appellate Court

45 N.E. 817

16 Ind.App. 630

CLARK COUNTY CEMENT COMPANY v. WRIGHT, ADMINISTRATOR

No. 2012

Court of Appeals of Indiana

January 27, 1897

From the Clark Circuit Court.

Reversed.

M. Z Stannard and Ward H. Watson, for appellant.

Laurent A. Douglass, for appellee.

HENLEY J. BLACK, J., was absent.

OPINION

HENLEY, J.

This was a suit for damages for negligently causing the death of appellee's decedent while working for appellant.

Counsel for appellant argue the insufficiency of the first paragraph of complaint because it fails to show decedent's want of knowledge of the dangerous defects which caused his death.

Ordinarily the servant does, as a part of his contract, assume the risk of all known dangers connected with his employment.

Pennsylvania Co. v. Witte, 15 Ind.App. 583, 43 N.E. 319, and cases therein cited; New Kentucky Coal Co. v. Albani, Admx., 12 Ind.App. 497, 40 N.E. 702; Ames, Admr., v. Lake Shore, etc., R. W. Co., 135 Ind. 363, 35 N.E. 117.

It is also true, as in those cases decided, that want of knowledge of the danger is an independent element of the plaintiff's case which must be affirmatively shown by the complaint. The rule, however, is not applicable where the servant is ordered to do work out of the line of, or away from the place of the work he is hired to perform. Stuart v. New Albany Mfg. Co., 15 Ind.App. 184, 43 N.E. 961; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327, 27 N.E. 741; Louisville, etc., R. W. Co. v. Hanning, Admr., 131 Ind. 528, 31 N.E. 187; Cincinnati, etc., R. R. Co. v. Madden, 134 Ind. 462, 34 N.E. 227; Pittsburgh, etc., R. W. Co. v. Woodward, 9 Ind.App. 169, 36 N.E. 442; Lynch v. Chicago, etc., R. R. Co., 8 Ind.App. 516, 36 N.E. 44; Kentucky, etc., Bridge Co. v. Eastman, 7 Ind.App. 514, 34 N.E. 835; Evansville, etc., R. R. Co. v. Holcomb, 9 Ind.App. 198, 36 N.E. 39.

While the terms of decedent's employment are not definitely stated in the complaint, nor any specific averment made as to just what work he was to perform under it, yet it is directly and pointedly alleged that the work at which he was engaged by the master's orders when killed, was entirely different from the work which he was employed to do, and was more dangerous and hazardous than such work, and had to be performed with different workmen operating under different rules and methods, and with appliances, and in a place distinct and different from those of the work which decedent was employed to do. These averments entirely exclude the possibility of the work, in the performance of which decedent was killed, being the same as that which decedent was originally employed to do.

Nor can it be said that decedent was necessarily negligent by reason of his obeying the master's orders, with knowledge of the additional hazard of the new work. The Supreme Court in Brazil Block Coal Co. v. Hoodlet, supra, say:

"When a master orders a servant to do something which involves encountering a risk not contemplated in his employment, although the risk is equally open to the observation of both, it does not necessarily follow that the servant either assumes the increased risk, or is negligent in obeying the order. If the apparent risk is such that a man of ordinary prudence would not take the risk, the servant acts at his peril. But unless the apparent danger is such as to deter a man of ordinary prudence from encountering it, the servant will not be compelled to abandon the service, or assume all additional risk, but may obey the order, using care in proportion to the risk apparently assumed, and if he is injured the master must respond in damages."

This court is of the opinion that the first paragraph of complaint stated facts sufficient to constitute a cause of action, and therefore the lower court did not err in overruling the demurrer thereto.

The second paragraph of complaint proceeds upon the theory that appellant did not provide the decedent with a safe working place and appliances, and directly avers that the machinery with which decedent worked was so constructed that decedent was exposed constantly to danger, all of which was unknown to decedent and was known to appellant. That the decedent's death was caused by the wrongful act and negligence of appellant and without any fault or carelessness of decedent. This court will not presume that the decedent knew of the defects in the machinery, if any there were, in the face of the allegation in the complaint that he did not know of them. Bedford Belt R. W. Co. v. Brown, 142 Ind. 659, 42 N.E. 359.

That the master must use reasonable care to provide his employes with reasonably safe working places, and with reasonably safe appliances with which to work, and to use every reasonable care to keep such places and appliances in such condition, is the undisputed law of the State, and has been so repeatedly held by this court and the Supreme Court of this State that argument for and against the proposition, and citation of the authorities, become useless.

It is also well settled in this class of actions that the averment of negligence on the part of the defendant, and the averment of the want of contributory negligence or knowledge of dangerous defects by the plaintiff is to be deemed sufficient against a demurrer, unless the facts specifically stated in the complaint show the contrary. Chicago & Erie R. W. Co. v. Wagner (Ind. App.), 45 N.E. 76; Evansville, etc., R. R. Co. v. Malott, 13 Ind.App. 289, 41 N.E. 549; Eureka Block Coal Co. v. Bridgewater, 13 Ind.App. 333, 40 N.E. 1101.

And that the general averment of knowledge or want of knowledge includes both actual and imputed knowledge. Pennsylvania Co. v. Witte, supra.

The lower court properly overruled the demurrer to the second paragraph of complaint.

We have examined the question of the competency of the evidence of the witness, Thomas B. Rader, objected to by appellant, and are of the opinion that the witness had sufficient experience and showed himself sufficiently familiar with the subject about which he testified, to make him competent as an expert in the matter testified about. This witness testified that he had been in the life insurance business eight or ten years; that he was supplied by his companies with tables giving the expectancy of life; that he used the same in his business; and, over the objection of appellant's counsel, was permitted by the court to refer to his tables and tell the jury the decedent's expectancy of life. We think the witness competent and the testimony proper. Shover, Admr., v. Myrick, 4 Ind.App. 7, 30 N.E. 207.

Appellant contends that the court erred in giving certain instructions to the jury, and one of the reasons assigned for the new trial herein is as follows:

"That the court erred in giving to the jury instructions numbered 1, 2, 3, 4, and 5, of the series of instructions given to the jury in said cause, by the court of its own motion, and in giving each of said instructions.

"That the court erred in giving to the jury instructions numbered 1, 2, 3, 4, 5, 5 1-2, 6, 7, 8, 9, 10, and 11, of the series of instructions tendered to the court by the plaintiff, and given...