Swanson v. City of Lafayette

• Decision Date: 18 April 1893
• Docket Number: 16,092
• Citation: 33 N.E. 1033,134 Ind. 625
• Parties: Swanson v. The City of Lafayette
• Court: Indiana Supreme Court

33 N.E. 1033

134 Ind. 625

Swanson v. The City of Lafayette

No. 16,092

Supreme Court of Indiana

April 18, 1893

Petition for a Rehearing Overruled June 6, 1893.

From the Tippecanoe Circuit Court.

Judgment affirmed.

T. A Stuart, J. R. Coffroth and W. R. Coffroth, for appellant.

J. F McHugh, S. P. Baird and W. D. Wallace, for appellee.

OPINION

Coffey, C. J.

This was an action commenced in the Tippecanoe Circuit Court, by the appellant, against the appellee, for the recovery of damages on account of a personal injury.

The complaint consists of two paragraphs. So much of the first paragraph as is material to the legal question involved in the case, alleges, substantially, that, on the 23d day of July, 1888, the appellee was engaged in hauling sand and gravel by means of horses and wagons, from a gravel pit; that the pit had theretofore been worked, and a large quantity of sand and gravel removed therefrom, by the appellee, so that an embankment, on the east side, existed, which was of the height and depth of fourteen feet from top to bottom; that the embankment was nearly perpendicular, and had on the top thereof a large quantity of earth; that the embankment was composed of sand and gravel, with earth on its top, which was liable to fall in large quantities and overwhelm any person who might be in said pit, and was very dangerous to any laborer employed therein in removing sand and gravel, all of which facts appellee knew, or by the exercise of reasonable diligence, might have known; that, on the day above named, the appellee employed the appellant as a common laborer to work in the pit to assist in the removal of sand and gravel therefrom, and set him to work at the foot of the embankment to shovel sand and gravel into the wagons; that at the time, and for several months prior thereto, the appellee had in its employment one Thomas Keefe, whose duty it was to set its laborers to work, and to superintend them in the gravel pit, and to give them warning of any immediate or threatened danger; that Keefe set the appellant to work in the gravel pit and soon thereafter absented himself, leaving no person in his place to warn the appellant of any threatened or immediate danger while at work; that the appellant was ignorant of the dangerous character of the work, and of the dangerous character and condition of the embankment, of its liability to fall and crush him while engaged at work, and relying on Keefe to give him warning of any and all dangers, undertook to perform the work for which he was employed, without any notice or warning from the appellee of the danger, and without any caution as to the same; that while ...