di Marcho v. Builders' Iron Foundry

• Decision Date: 11 October 1892
• Citation: 27 A. 328,18 R.I. 514
• Parties: DI MARCHO v. BUILDERS' IRON FOUNDRY.
• Court: Rhode Island Supreme Court

27 A. 328

18 R.I. 514

DI MARCHO

v. BUILDERS' IRON FOUNDRY.

Supreme Court of Rhode Island.

Oct. 11, 1892.

Trespass on the case by Carmeno Di Marcho against the Builders' Iron Foundry for negligence causing personal injury to plaintiff. On motion for surety for costs, and on demurrers to the declaration. Motion for costs denied, and demurrers partly sustained and partly overruled.

George T. Brown, for plaintiff.

Samuel Ames, for defendant.

TILLINGHAST, J. The defendant's motion that the plaintiff be required to furnish surety for costs is denied, upon the affidavit of the latter as to poverty.

On Demurrer.

(Jan. 7, 1893.)

PER CURIAM. Since a corporation can only act through its servants and agents, we think the allegation in the declaration that the corporation threw, or caused to be thrown, a box, etc., equivalent to an allegation that the corporation did the act by its servants and agents.

The allegation that the plaintiff, at the time of receiving the injuries complained of, was and had been for a long time prior thereto, employed by the defendant corporation in and about its grounds, buildings, and machinery, to assist in the work of carrying on its foundry business, and that at the time of receiving such injuries he was engaged in said employment on the grounds of the defendant corporation, near said pile of iron posts or columns, sufficiently sets forth the plaintiff's relation to the corporation, as its servant or employe engaged in the duty of his employment at the time of receiving the injuries, to show that it was bound to the exercise of due care on its part not to expose him, unnecessarily, to injury.

The defendant objects to the sufficiency of the allegation that the plaintiff was in the exercise of due care. He insists that such an allegation is merely an inference or conclusion of law, and that the plaintiff should set forth particularly the acts he was engaged in doing at the time of receiving the injuries, so that it may appear whether or not he was in the exercise of due care. We do not agree with the defendant that the allegation that the plaintiff was in the exercise of due care is an inference or conclusion of law. It is rather, at least generally, an inference of fact. Inasmuch, however, as the declaration does not set forth specifically what the plaintiff was employed to do, but only, generally, that he was employed to assist in the work of carrying on the defendant's business, we think that the plaintiff may properly be...