Indiana Natural Gas & Oil Co. v. O'Brien

• Decision Date: 08 January 1903
• Citation: 160 Ind. 266,65 N.E. 918
• Court: Indiana Supreme Court
• Parties: INDIANA NATURAL GAS & OIL CO. v. O'BRIEN.

160 Ind. 266

65 N.E. 918

INDIANA NATURAL GAS & OIL CO.

v.O'BRIEN.¹

Supreme Court of Indiana.

Jan. 8, 1903.

Appeal from circuit court, Cass county; D. H. Chase, Judge.

Action by Lillie O'Brien, a minor, against the Indiana Natural Gas & Oil Company. From a judgment for plaintiff, defendant appealed to the appellate court, whence the case was transferred to the supreme court, under Burns' Rev. St. 1901, § 1337u. Affirmed.

W. O. Johnson, M. Winfield, and G. C. Taber, for appellant. Lairy & Mahoney and McConnell & Jenkines, for appellee.

JORDAN, J.

Appellee, a minor, commenced this action by her next friend in the Howard circuit court to recover damages for personal injuries sustained by her, and alleged to be due to the negligence of appellant. The cause was venued to the Cass circuit court, wherein, on a trial by the court, appellee was awarded the sum of $4,000, and, over appellant's motion for a new trial, judgment was rendered on the general finding of the court for that amount. From this judgment appellant appeals, and assigns three errors: (1) Overruling the demurrer to the amended complaint; (2) overruling motion in arrest of judgment; and (3) denying motion for a new trial.

The amended complaint, among other things, discloses that the defendant is a corporation organized and doing business in and under the laws of the state of Indiana, and has been such corporation for about 10 years, and during that time has been engaged in constructing, maintaining, and operating gas pipe lines in the gas territory of Indiana, running from Cass county to Chicago, in the state of Illinois. Prior to the 25th day of June, 1899, the defendant, while maintaining and operating its gas pipe line aforesaid, excavated a deep and wide trench in which to lay its pipe line across the northwest corner of Spencer Park, a public park owned by the city of Logansport, Ind., and situated near to said city. This park, it is alleged, was open to and frequented by the public generally, and that a public drive and road in said park was much traveled by the public, which fact was well known to the defendant. Said trench, where it crossed said drive and highway, was very deep and wide, and dangerous to persons traveling on the said highway when the trench was not securely bridged and covered. The defendant, at and prior to the aforesaid date, invited the public generally to travel said highway over said trench, by bridging the same as to make it appear to be safe for travelers to pass over. After alleging these facts, the complaint charges that said defendant “carelessly and negligently bridged and covered said trench at said drive and highway with weak and insufficient material, to wit, with small, defective, weak, and rotten cross-ties, and covered said cross-ties with thin, defective, and decayed boards, which would not stand the weight of an ordinary horse and buggy passing on and over the same. That said cross-ties were not securely fastened in the earth, and that said boards were not nailed or otherwise fastened to such cross-ties, by reason whereof said covering and bridge were from the first insecure and unsafe to the public having occasion to travel over said drive and highway. That on said 25th day of June, 1899, the plaintiff was riding on and along said highway in a buggy drawn by a single horse, and while so driving along said highway, intending and endeavoring to drive over said trench across said bridge or covering, and when her horse was on and about to cross the same, said bridge gave way and broke down, and thereby and by reason whereof precipitated her said horse into said deep and wide trench, whereby and by reason whereof the buggy in which the plaintiff was riding was suddenly thrown forward with great force and violence, by which the plaintiff was thrown with terrific force and violence from her seat in said buggy against the front part thereof, to wit, upon the dashboard and the wheels of said buggy, and she was then and thereby made sick, and greatly and sorely wounded, cut, strained, ruptured, torn, lacerated, and otherwise injured, both externally and internally.” It is also alleged that her said injuries are permanent, and by reason thereof she will be an invalid, unable to labor and earn a livelihood, during the remainder of her natural life. A further description of her injuries, her suffering, and the expense which she incurred by reason of medical treatment, etc., are disclosed. She alleges that she is 19 years of age, and prior to the accident had always enjoyed perfect health, etc. Damages in the sum of $25,000 are demanded.

The principal objection urged against the complaint is that there is an entire absence therein of any averments to negative notice or knowledge on the part of the plaintiff of the unsafe or dangerous condition of the bridge previous to the time of the accident. It is therefore insisted that, in view of the absence of such averments, the presumption necessarily must follow that she did know or have knowledge of the peril or danger to which she would be exposed by her act in entering upon the bridge in controversy. Under such circumstances it is said that by her voluntary act in going upon the bridge she thereby assumed or took upon herself the risk of a known danger, and a recovery in this action is therefore barred. Or, in other words, it is contended that, under the facts in the complaint, the principle affirmed by the maxim volenti non fit injuria applies and rules the case. It is conceded, and properly so, that the rule which formerly prevailed in this jurisdiction, requiring a plaintiff, who sued to recover for personal injuries due to the negligence of the defendant, to allege in his complaint, and prove upon the trial, freedom on his part of contributory negligence, has been abrogated by an act of the legislature approved February 17, 1899. Acts 1899, p. 58; section 359a, Burns' Rev. St. 1901. But the contention is advanced that the latter act did not relieve appellee of the duty of showing by positive averments in her complaint that she had no notice or knowledge, at the time she entered upon the bridge, of its unsafe or dangerous condition. It is insisted that, under the law as it still exists, she was required to negative such knowledge upon her part, in order to show that by her act in entering upon the bridge she did not voluntarily assume or take upon herself the risk of its unsafe or dangerous condition. It will be noted that the question as here presented relates wholly to the sufficiency of the pleading in respect to its statement of a cause of action arising out of the negligence of the defendant, and that the relation of master and servant did not exist between the respective parties at the time the alleged injury was sustained. It has been settled, by a long line of decisions of this and the appellate court, that in an action wherein it is sought to recover damages for the injury or death of a servant by reason of or on account of the negligence of the master in failing to furnish a safe place or premises in which the servant was required to work, or safe machinery, appliances, or implements with which he was required to perform the duties of his employment, then in such a case the complainant must negative in his complaint knowledge on the part of the servant of the unsafe condition of such premises, machinery, appliances, or implements, in order to show that the injured or deceased servant had not voluntarily assumed the danger complained of as one of the ordinary risks of the service or employment in which he was engaged. See the following cases: Railway Co. v. Dailey, 110 Ind. 75, 10 N. E. 631;Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770;Railway Co. v. Corps, 124 Ind. 427, 24 N. E. 1046, 8 L. R. A. 636; Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. 355; Railroad Co. v. Miller, 140 Ind. 685, 40 N. E. 116;Stone Co. v. Wray, 143 Ind. 574, 42 N. E. 927; Railroad Co. v. Kemper, 147 Ind. 561, 47 N. E. 214;Cement Co. v. Wright, 16 Ind. App. 630, 45 N. E. 817; Railroad Co. v. Wagner, 17 Ind. App. 22, 45 N. E. 76, 1121;Carriage Co. v. Potter, 21 Ind. App. 692, 51 N. E. 737;Carriage Co. v. Potter, 153 Ind. 107, 53 N. E. 465;Coal Co. v. Albini, 12 Ind. App. 498, 40 N. E. 702; Railroad Co. v. Holcomb, 9 Ind. App. 198, 36 N. E. 39;Linton Mining Co. v. Persons, 11 Ind. App. 264, 39 N. E. 214; C. H. Hammond Co. v. Mason, 12 Ind. App. 469, 40 N. E. 642; Railroad Co. v. Pruitt, 25 Ind. App. 227, 57 N. E. 949;Staldter v. City of Huntington 153 Ind. 354, 55 N. E. 88.

The statute of 1899, supra, under its terms only professes to apply to contributory negligence, and cannot be extended to relieve a plaintiff of the burden of showing in his complaint an absence of the assumption of risk on the part of the injured person, when required under the rule asserted and enforced by this court in cases previous to the enactment of the aforesaid act. The rule, as asserted in the cases last above cited, in respect to exacting the duty of a plaintiff, in an action in which the relation of master and servant existed, to negative the fact that the injured person did not assume the risk incident to the danger in question, remains untouched and unchanged by the statute of 1899. Counsel for appellee insist that the doctrine of the assumption of risk must be confined alone to cases of negligence wherein the relation of master and servant or other contractual relations existed between the parties at the time of the accident, and cannot be extended to a class of cases to which the one at bar belongs. It may be said that the principle commonly denominated “assumption of risk,” in its technical sense or meaning, as recognized and applied in cases where the relation of master and servant or other contractual relations existed between the parties at the time of the accident, does not extend or apply to a class of cases to which the one under consideration belongs. Nevertheless we...