Louisville v. Corps

• Decision Date: 20 June 1890
• Citation: 24 N.E. 1046,124 Ind. 427
• Parties: Louisville, N. A. & C. Ry. Co. v. Corps.
• Court: Indiana Supreme Court

124 Ind. 427

24 N.E. 1046

Louisville, N. A. & C. Ry. Co.

v.Corps.

Supreme Court of Indiana.

June 20, 1890.

Appeal from circuit court, Clark county; C. P. Ferguson, Judge.

James K. Marsh and Ward H. Watson, for appellant. M. Z. Stannard and Frank B. Burke, for appellee.

Elliott, J.

It has been often ruled by this court that an attack upon one of several paragraphs of a complaint, made for the first time in the assignment of errors, will be unavailing, even though the paragraph assailed may be radically defective. This settled doctrine renders it unnecessary for us to consider the objections urged against the first paragraph of the appellee's complaint.

The second paragraph of the complaint was assailed by demurrer in the court below, and we are required to give judgment upon it. The paragraph named alleges that the plaintiff was in the service of the defendant as a laborer in its repair-shops at New Albany; that the defendant negligently employed an inexperienced, unskillful, and incompetent person to superintend and direct the work in its shops, and the work upon which the plaintiff was engaged at the time of his injury; that the work which the plaintiff was then performing was that of moving the large driving wheels of one of the defendant's locomotives; that the defendant negligently failed to provide a sufficient number of competent men to do the work of moving such wheels; that the defendant negligently failed to furnish sufficient machinery for such work, in that it failed to furnish blocks to hold such wheels; that, by reason of the careless and negligent acts of the defendant, a pair of driving wheels of one of its locomotives ran upon the plaintiff's hand and arm, and so injured them as to deprive the plaintiff of their use; that the driving wheels ran upon the plaintiff without fault on his part, and the injury to him could not have been avoided by the exercise of care or prudence on his part. It is settled law that an employer must use reasonable care to provide his employes with safe working places and appliances. It is also settled that the employer must use reasonable care to select competent and skillful persons for service. Car Co. v. Parker, 100 Ind. 181;Railway Co. v. Lang, 118 Ind. 579, 21 N. E. Rep. 317; Taylor v. Railroad Co., 121 Ind. 124, 22 N. E. Rep. 876; Railway Co. v. Stupak, 23 N. E. Rep. 246; Railroad Co. v. O'Shaughnessy, Id. 675.

But it is quite as well settled that an employe cannot recover from the employer for an injury produced by some cause incident to the nature of his services, and that the master is not responsible for the known risks incident to the service in which the servant engages. For anything that appears in the complaint, the peril was a known incident of the service, and was one assumed by the plaintiff, and, if it was, there can be no recovery. Railway Co. v. Watson, 114 Ind. 27, 14 N. E. Rep. 721, and 15 N. E. Rep. 824; Railroad Co. v. O'Shaughnessy, supra, and cases cited. In order...