The Peerless Stone Co. v. Wray

• Decision Date: 31 January 1896
• Docket Number: 17,556
• Citation: 42 N.E. 927,143 Ind. 574
• Parties: The Peerless Stone Company v. Wray
• Court: Indiana Supreme Court

42 N.E. 927

143 Ind. 574

The Peerless Stone Company v. Wray

No. 17,556

Supreme Court of Indiana

January 31, 1896

From the Monroe Circuit Court.

Judgment reversed, with instructions to sustain the demurrer to each paragraph of the amended complaint.

Dunn & Lowe, for appellant.

East & Miller and Louden & Louden, for appellee.

OPINION

Monks J.

Appellee brought this action to recover damages for personal injuries received while working in appellant's stone quarry.

The complaint was in three paragraphs. To each paragraph a demurrer, for want of facts, was overruled and exceptions reserved. After issue joined the cause was tried by jury, a special verdict returned and, over a motion by appellant for judgment in its favor and a motion for a new trial, judgment was rendered in favor of the appellee. The errors assigned call in question each of said rulings of the court. It is earnestly insisted by the appellant that neither paragraph of the complaint was sufficient for the reason that there is no allegation that appellee had no knowledge of the danger, etc.

Appellee alleges, in the first paragraph of complaint, that "appellant was the owner and engaged in operating a stone quarry; that on and prior to June 8, 1892, appellee was employed by said appellant, and on said day a large pile of clay, dirt and stone, that had been loosened by the removal of stone and left an embankment unsupported, fell upon appellee while he was removing tools which were near said embankment. That said appellee, when so injured, was in the line of his duty in the service of appellant, and had no knowledge that said dirt, clay and stone had been loosened and left without any support; that said appellee was wholly without fault or negligence on his part at the time he received said injuries, and in no way whatever contributed to the same."

It is also alleged "that appellant well knew that said bank of clay, dirt and stone was loose and unsupported and in danger of falling, and had known said fact for several days before said accident, but negligently and carelessly failed to notify said plaintiff or call his attention to the fact that there was any danger in passing close to said bank of clay dirt and stone."

It is well settled that in this class of cases, in order to make a good complaint, it must be averred that the plaintiff had no knowledge of the danger. Louisville, etc., R. W. Co. v. Sandford, Admr., 117 Ind. 265, 19 N.E. 770; Big Creek Stone Co. v. Wolf, Admr., 138 Ind. 496, 498-499, 38 N.E. 52; Louisville, etc., R. W. Co. v. Corps., 124 Ind. 427 (428) (8 L. R. A. 636, 24 N.E. 1046); Brazil, etc., Coal Co. v. Young, 117 Ind. 520, 524, 20 N.E. 423; Wabash, etc., R. W. Co. v. Morgan, 132 Ind. 430, 31 N.E. 661, and cases cited on page 446; New Kentucky Coal Co. v. Albini, 12 Ind.App. 497, 40 N.E. 702, and cases cited; Deering on Negligence, section 201, and cases cited.

There is no such averment in the first paragraph of the complaint. The averment of want of knowledge must be as broad as the averment of knowledge on the part of appellant.

The only averment of want of knowledge on the part of appellee was "that appellee had no knowledge that said dirt, clay and stone had been loosened and left without any support." There is no allegation that appellee did not know that the same was "in danger of falling" or "that there was danger in passing close to said bank." These were facts of which it is alleged the appellant had knowledge, and upon the alleged failure of the appellant to notify appellee of the same, is predicated appellee's right to recover. For all that appears in this paragraph, appellee may have been fully aware of the danger of approaching said embankment and removing the tools, and that the same "was in danger of falling."

The allegations that appellee had no knowledge that said dirt, clay and stone had been loosened and left without any support, is not equivalent to an allegation that he had no knowledge that said bank of clay, dirt and stone were loose and unsupported and in danger of falling." Moreover, the allegation of negligence on the part of appellant is not that appellant did not notify him that said dirt, clay and stone were loose and unsupported, but that appellant did not notify him that there was danger in passing close to said bank of clay, dirt and stone, of which fact, for all that appears, he may have had full knowledge.

It is apparent from the allegations in this paragraph that appellee had at least an equal opportunity with appellant to have known that the embankment mentioned was unsupported. The same was open to his observation, and if he had exercised ordinary care he would have known such fact.

The rule is that obvious defects or dangers, open to the ordinary careful observation, or such as are or should be known by the exercise of ordinary care, are assumed by the employe. Louisville,...