Griffin v. Ohio And Mississippi Railway Company

• Decision Date: 17 June 1890
• Docket Number: 14,366
• Citation: 24 N.E. 888,124 Ind. 326
• Parties: Griffin v. The Ohio and Mississippi Railway Company
• Court: Indiana Supreme Court

24 N.E. 888

124 Ind. 326

Griffin v. The Ohio and Mississippi Railway Company

No. 14,366

Supreme Court of Indiana

June 17, 1890

From the Dearborn Circuit Court.

Judgment affirmed.

G. M Roberts and C. W. Stapp, for appellant.

H. D McMullen and W. R. Johnston, for appellee.

OPINION

Coffey, J.

This was an action by the appellant against the appellee to recover damages on account of a personal injury suffered by the appellant at a gravel pit.

It appears from the complaint that the appellant was employed by the appellee to assist in loading gravel upon its gravel train to be distributed along the line of its road. The bed of gravel in which the appellant was employed to work was nearly twenty feet in thickness, covered by a stratum of clay between four and five feet in thickness. The gravel was loaded upon the cars by means of a large shovel attached to a crane, by which it was scooped from near the base of the bed. The crane not being long enough to scoop all the gravel from its base to the clay on top, that above its reach was gouged and spaded out by means of long picks and spades used by the employees of the appellee. When the gravel was thus picked and spaded out it caused the clay covering the same to cave and fall down. While engaged in excavating the gravel by filling in the sink occasioned by the scoop, after each load, the appellant was injured by the falling of the clay covering such gravel, within three hours after he commenced work.

It is alleged that the appellee did not notify appellant of the danger attending such work by reason of the caving in and falling of the clay covering the gravel, and that he had no knowledge or notice of such danger, and that his injury occurred by reason of the carelessness and negligence of the appellee in not warning him of the danger and how to escape therefrom, and in not warning him of the manner of such excavating and the danger resulting therefrom, and how to detect and escape such danger, and in not having any sufficient means of giving such warning. At the time of the injury the appellant was twenty-one years old.

The court below sustained a demurrer to the complaint, and this ruling is assigned as error.

It has been too long settled to admit now of controversy that when a servant enters upon an employment which is, from its nature, necessarily hazardous, he assumes the usual risks and perils of the service. In such cases it is held that there is an implied contract on the part of the servant to take all the risks fairly incident to the service, and to waive any right of action against the master resulting from such risk. Atlas Engine Works v. Randall, 100 Ind. 293; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187; Beach Cont. Neg., p. 8; Taylor v. Evansville, etc., R. R. Co., 121 Ind. 124, 22 N.E. 876; Lake Shore, etc., R. W. Co. v. McCormick, 74 Ind. 440. The master in such cases impliedly agrees not to subject the servant, through fraud, negligence or malice, to greater risks than those which fairly and properly belong to such particular service.

Where one seeks to recover damages on account of an injury...