Louisville, Evansville & St. Louis Consolidated Railroad v. Miller
| Decision Date | 03 April 1895 |
| Docket Number | 17,048 |
| Citation | 40 N.E. 116,140 Ind. 685 |
| Parties | Louisville, Evansville and St. Louis Consolidated Railroad Company v. Miller, Administratrix |
| Court | Indiana Supreme Court |
From the Floyd Circuit Court.
The judgment is affirmed.
A Dowling, for appellant.
C. L Jewett and H. E. Jewett, for appellee.
The appellee sued and recovered for the negligent killing of her husband, James A. Miller, an employe of the appellant serving as freight conductor. The complaint alleged that the appellant was negligent in supplying defective cars, in failing to supply track inspectors and in supplying a track defective in materials and construction; that by reason of such negligence the track gave way, the cars broke down and said employe was thereby killed.
It was alleged also that the defects constituting such negligence were known to the appellant and were unknown to said employe; that the death was caused without fault or negligence on the part of the employe, and solely because of said negligence of the appellant.
We have, for the appellant, but a meager brief, filed on application for the supersedeas writ, and which merely suggests that the complaint is defective, first, in failing to aver that the appellant's knowledge of the alleged defects was in time to have made repairs or to have given notice thereof to employes; second, that the alleged defects were of such character that if continued for a considerable time they must have been known by the decedent; and, third, that it was not alleged that the injury was not caused by the negligence of a coemploye of the decedent.
It can not be doubted that all of the alleged neglected duties were such that their performance rested upon the appellant, and could not be entrusted to a fellow-servant of the injured employe so as to absolve the appellant from liability for their nonperformance. The allegation of knowledge on the one side, and its absence on the other, may be made in general terms, and is held to include not only actual but constructive knowledge. Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355.
While not intending to hold here that it is necessary to the liability of the master that he shall have knowledge of defects for a sufficient time to permit repairs, we do hold that the allegation of knowledge includes constructive knowledge, which is that knowledge chargeable to the master from an opportunity, by the...
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