New Kentucky Coal Company v. Albani

• Decision Date: 17 May 1895
• Docket Number: 1,553
• Parties: THE NEW KENTUCKY COAL COMPANY v. ALBANI, ADMINISTRATRIX, ETC
• Court: Indiana Appellate Court

40 N.E. 702

12 Ind.App. 497

THE NEW KENTUCKY COAL COMPANY v. ALBANI, ADMINISTRATRIX, ETC

No. 1,553

Court of Appeals of Indiana

May 17, 1895

From the Vermillion Circuit Court.

Judgment reversed, with leave to amend complaint.

W. J Strong, W. K. Carlisle, M. G. Rhoads and B. S. Aikman, for appellant.

H. H Conley, J. C. Sawyer, T. N. Rice, J. T. Johnston, J. D. Piety and J. E. Piety, for appellee.

OPINION

GAVIN J.

Action to recover damages for negligently failing to make safe the roof of the mine wherein appellee's decedent was working in appellant's employ.

The complaint avers negligence upon the part of appellant and freedom from contributory negligence on the part of the deceased, but it wholly fails to allege appellant's knowledge of the dangerous condition of the roof or the deceased's want of such knowledge.

It can not, therefore, be deemed sufficient to withstand the demurrer by which it was challenged.

The sufficiency of the general allegations of negligence and want of negligence in ordinary cases where negligence is sought to be put in issue can not be controverted.

It is the duty of the master to exercise reasonable care to provide reasonably safe working places, appliances and machinery for his servants. Evansville, etc., R. R. Co. v. Holcomb, 9 Ind.App. 198, 36 N.E. 39; Linton Coal, etc., Co. v. Persons, 11 Ind.App. 264, 39 N.E. 214; Hammond, G. H. & Co. v. Mason, 12 Ind.App. 469, 40 N.E. 642.

But in suits by the servant against the master for his negligent failure to furnish a safe place or safe machinery or appliances for the servant's task, the law must now be regarded as settled in Indiana, by repeated adjudications, that knowledge is an independent element of liability not included in the general averment of negligence or want of negligence.

Where, therefore, as here, a recovery is sought for the master's neglect of his duty with reference to safe place or appliances, knowledge of the defect by the master and want of knowledge by the servant must be affirmatively shown by the complaint. Chicago, etc., R. R. Co. v. Fry, Admx., 131 Ind. 319, 28 N.E. 989; Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156, 33 N.E. 355; W. C. DePauw Co. v. Stubblefield, 132 Ind. 182, 31 N.E. 796; Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N.E. 15; Ames, Admr., v. Lake Shore, etc., R. W. Co., 135 Ind. 363, 35 N.E. 117; Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N.E. 795; Kentucky, etc., Bridge Co. v. Eastman, 7 Ind.App. 514, 34 N.E. 835; Cleveland, etc., R. W. Co. v. Sloan, 11 Ind.App. 401, 39 N.E. 174; Lake Shore, etc., R. W. Co. v. Kurtz, 10 Ind.App. 60, 35 N.E. 201.

The servant's knowledge or want of knowledge must be specially alleged, because upon this it depends whether or not he is to be held to have assumed the risk of the defect, assumption of the risk and contributory negligence being separate and independent factors.

It is also established by the authorities that the allegations as to knowledge include not only actual but constructive knowledge. Parke Co. Coal Co. v. Barth, 5 Ind.App. 159, 31 N.E. 585; Heltonville Mfg. Co. v. Fields, 138 Ind. 58, 36 N.E. 529; Evansville, etc., R. R. Co. v. Duel, supra.

The appellee relies upon Ohio, etc., R. W. Co. v. Pearcy, Admx., 128 Ind. 197, 27 N.E. 479, which was followed by Louisville, etc., R. R. Co. v. Utz, Admr., 133 Ind. 265, 32 N.E. 881, to sustain his position that the general averment of negligence includes knowledge.

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