Consol. Stone Co. v. Staggs

• Citation: 164 Ind. 331,73 N.E. 695
• Decision Date: 08 March 1905
• Docket Number: No. 20,486.,20,486.
• Parties: CONSOLIDATED STONE CO. v. STAGGS.
• Court: Supreme Court of Indiana

164 Ind. 331

73 N.E. 695

CONSOLIDATED STONE CO.

v.STAGGS.

No. 20,486.

Supreme Court of Indiana.

March 8, 1905.

Appeal from Circuit Court, Greene County; O. B. Harris, Judge.

Action by Lila Staggs, administratrix, against the Consolidated Stone Company. From a judgment for plaintiff, defendant appealed. Transferred from the Appellate Court under Burns' Ann. St. 1901, § 1337j. Reversed.

For report of Appellate Court, see 71 N. E. 161.

Duncan & Batman and Cyrus E. Davis, for appellant. East & East, for appellee.

GILLETT, J.

Action by appellee for negligently killing her decedent. The suit was commenced in the Monroe circuit court, and the issues were made up there as to the first and second paragraphs of the complaint. The venue was afterwards changed to the Greene circuit court. There was a third paragraph of complaint filed there, and, upon the closing of the issues, there was a trial by jury, which resulted in a verdict in appellee's favor for $7,000, on which judgment was rendered.

The first assignment of error is that “the court erred in overruling appellant's motion to make the third paragraph of complaint more specific.” The record does not disclose that such a motion was made. Appellant seeks to question the action of the Monroe circuit court in overruling a demurrer for want of facts, which was addressed to the first and second paragraphs of complaint. Appellee's counsel contend that these paragraphs and the demurrer are not before us. The transcript of the clerk of said court contains what purport to be copies of the first and second paragraphs of complaint and the demurrer addressed to them, but in his certificate he only certifies to the correctness of the copies of the entries of the court. It does not appear from the record that the original papers were deposited in the office of the clerk of the Greene circuit court. His transcript does not contain them, and his final certificate goes no further in this particular than to certify that the transcript “contains a full, true and complete copy of the record in said cause, as the name appears of record and on file in my office.” Both in respect to the body of the record and the final certificate, this case is very different from Southern Ind. R. Co. v. Martin, 160 Ind. 280, 66 N. E. 886. While we might presume in this case that the original papers were deposited in the office of the clerk of the Greene circuit court at the time that the transcript was filed, the fact remains that every word of both certificates might be true, and yet that correct copies of the complaint and demurrer were not before us. Timely notice of this objection was given by appellee's brief, and, there having been no effort to get a transcript of these papers into the record by writ of certiorari issued to the clerk of the court below, we are not warranted in passing upon the sufficiency of these two paragraphs.

Appellant's third assignment of error draws in question the overruling of its demurrer to the third paragraph of the complaint. It is urged that it does not appear in this paragraph that decedent did not assume the risk. We shall not attempt to digest the paragraph. It will suffice for an introductory statement concerning it to state that it asserts that the death of appellee's decedent was caused by a guy, used in the support of a large derrick, dragging from a loaded dump car a stone, which fell upon decedent as he was assisting in pushing the car along a tramway which passed under the guy. The allegations of decedent's want of knowledge are as follows: “The plaintiff alleges that on said date and prior thereto the deceased, John Staggs, had no knowledge of the defective condition of said derrick, guy rope, mast, boom, or other parts of said derrick and machinery; that he did not work near it, or in view of it, and had no opportunity in his work of observing the condition of said derrick and its machinery, and on the day of his death and prior thereto had no knowledge that the place he was working was dangerous and unsafe for him to work, but relied upon the facts that defendant had all its machinery in good working order and had made the place where he was working safe for him to work.” An averment of a want of knowledge in a complaint negatives both actual and constructive knowledge. Indianapolis, etc., Co. v. Foreman, 162 Ind. 85, 69 N. E. 669. It is true that said paragraph does not show that decedent was ignorant of the existence of every condition which is made the basis of a charge of negligence against appellant, yet we think that the paragraph was sufficient. While it is to be inferred against the pleader that decedent had a sufficient opportunity to observe the height of the guy above the tramway, yet it is charged that he did not know of the defects in the derrick which in certain circumstances would cause the guy to slack. A servant is not to be deemed to have consented to an unusual risk, where he had no knowledge of the exceptional danger, and could not with ordinary care and prudence have discovered it. 4 Thompson, Com. Law of Neg. § 4631.

Appellant's counsel further contend that it does not appear from said paragraph that the death of Staggs was the direct result of the negligence charged. While it is true that the...