The Louisville, Evansville And St. Louis Railroad Co. v. Berry
| Decision Date | 02 October 1891 |
| Docket Number | 337 |
| Citation | 28 N.E. 714,2 Ind.App. 427 |
| Parties | THE LOUISVILLE, EVANSVILLE AND ST. LOUIS RAILROAD COMPANY v. BERRY |
| Court | Indiana Appellate Court |
From the Dubois Circuit Court.
Judgment reversed, with instructions to grant a new trial.
J. E Iglehart and E. Taylor, for appellant.
W. R Gardiner, S. H. Taylor, C. G. Gardiner, A. J. Padgett and A Paget, for appellee.
This action was commenced by John Berry against the Louisville, Evansville and St. Louis Consolidated Railroad Company to recover damages for the loss of services of his minor son, who is alleged to have been killed by the carelessness of such company.
The complaint alleges, in substance, that Henry E. Berry, the plaintiff's son, was eighteen years of age, and was employed by the defendant to work in its engine-house at Huntingburg as an "engine washer," which was a reasonably safe employment; that said Henry was inexperienced, and unfamiliar with machinery, and unacquainted with the dangerous character of engines and boilers; that the defendant had in use upon its railroad an old worn-out engine, the boiler of which had been constructed with holes in it for the purpose of cleaning it out, and these holes were kept closed while the engine was in use by means of brass plugs, known as "mud plugs" screwed into the rim of the boiler; that these plugs became so worn and deficient that the boiler leaked steam and water, and it was very dangerous to undertake to tighten them while the boiler was filled with hot water and steam; that said Henry was ignorant of such danger, and on the 12th day of June, 1887, while the boiler was in such dangerous condition, an employee of the defendant, who was foreman of the engine-house, and under whom the said Henry worked, carelessly and negligently directed him to go under such engine and tighten the mud plugs, and in obedience to such direction he undertook to do so, and while so engaged, and without fault upon his part, one of the plugs was blown out by the pressure in the boiler and said Henry was burned and scalded with escaping steam and hot water so that he died soon thereafter. It is also averred that the plaintiff was ignorant of the danger, and that his said son was sent under the boiler without his knowledge or consent, and that the injury occurred without his fault.
No demurrer was filed to the complaint, and an answer of general denial put the cause at issue. A jury trial was had, and a verdict returned in favor of the plaintiff for $ 900, upon which judgment was duly rendered.
The defendant's motion for a new trial was overruled, and it prosecutes this appeal, assigning for error: 1. The insufficiency of the complaint. 2. Overruling the motion for a new trial.
It is insisted on behalf of appellant that the complaint is fatally deficient because it does not allege that the deceased had no means of informing himself of the dangerous condition of the boiler before the accident.
It is true that one who enters into the service of another, in the absence of an express agreement to the contrary, assumes all of the hazards ordinarily incident to the employment, and this assumption is regarded as part of the consideration for the compensation agreed upon. This principle applies to the employment of minors as well as adults. Taylor v. Wootan, 1 Ind.App. 188, 27 N.E. 502; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151, 5 N.E. 187.
It is equally true that the master is bound to use ordinary care and diligence in providing reasonably safe and suitable machinery and appliances for his servants, and is liable for injuries resulting from his failure to perform this duty. He is also chargeable with notice of the natural tendency of machinery and implements to wear out and decay with use and age, and is therefore required to exercise an active and continuing supervision and vigilance to maintain them in a reasonably safe condition. Indiana Car Co. v. Parker, 100 Ind. 181.
A servant may rightfully act upon the presumption that the master has performed his duty in supplying proper machinery and appliances unless he has notice otherwise, or facts are patent and come within the reasonable range of his observation, which would excite the apprehension of a reasonably cautions person, and put him upon inquiry. Indiana Car Co. v. Parker, supra; Bradbury v. Goodwin, 108 Ind. 286, 9 N.E. 302.
The general statement is made in some of the books and decisions of courts that the law will not permit a servant to recover from his master for an injury resulting on account of a dangerous defect in the service if he had the same means of discovering the defect as the master had. This principle can apply only where the servant is under the same obligation as the master to know the condition of the service.
While a servant may have an opportunity, he is not bound to make a critical examination of the condition of an implement or item of machinery before using it, to ascertain if it contains any latent defects, unless so required by the terms of his employment.
We do not think it was necessary for the plaintiff to allege that his deceased son had no opportunity of informing himself of the dangerous condition of the boiler. The averments of his youth, inexperience and ignorance, and the fact that the injury occurred without his fault, were sufficient. These averments, considered in connection with the other allegations, are fairly equivalent to the charge that the defendant set the deceased at a hazardous engagement without giving him sufficient warning and instruction to enable him to avoid the danger.
It is insisted also that the averment that the plaintiff was free from fault contributing to the disaster was not sufficient because the word "negligence" was not used in that connection.
The argument is that the word "fault" imputes a moral delinquency, and is not the equivalent of "negligence" in legal literature.
Modern lexicography authorizes the use of this...
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