Tennis Co. v. Davis

92 N.E. 986, 46 Ind. App. 436, 1910 Ind. App. LEXIS 115

• Court: Indiana Court of Appeals
• Decided: November 15, 1910
• Docket: No. 7,104
• Status: Published

Opinion

Comstock, C. J.

Appellee sued appellant to recover-damages for personal injuries sustained by him while in the-employ of appellant.

The complaint is in two paragraphs. The first alleges,, in substance, that appellant was engaged in constructing an electric interurban railway; that in constructing said, railway large wooden poles, known as trolley-poles, to which arms were fastened that supported the trolley:wire, were-placed in an upright position parallel with said railroad track; that on November 18, 1907, said company was engaged in constructing said line; that on said day plaintiff' was employed by defendant as a brakeman'on defendant’s work-train; that defendant erected all of said trolley-poles along said railroad track, graded the roadbed, laid the rails, and ballasted said traction line; that defendant carelessly and negligently placed said poles four and one-half feet from said track, thereby rendering it dangerous to plaintiff' in giving signals to the engineer, which facts were well known to defendant and of which plaintiff had no knowledge; that on November 18, 1907, plaintiff, while working for defendant company as brakeman on its work-train, and while in the proper discharge of his duties as brakeman,. was ordered by defendant’s foreman to give a certain signal to the engineer in charge of and operating the-locomotive engine drawing said work-train; that it was the-duty of plaintiff to obey and conform to the orders of said foreman; that in order properly to signal said engineer it was necessary for plaintiff to stand on and near the edge of' said work-car, and endeavor to get the attention of said engineer by extending his right hand and arm from the side of said ear upon which he was standing, and thereby give to said engineer the proper signal to stop-, that while attempting to signal said engineer, as aforesaid, plaintiff’s right hand and wrist, suddenly and without warning, came in violent contact with one of said trolley-poles located near said track, as aforesaid, thereby bruising and injuring the hand and wrist of plaintiff, all of which was caused by the carelessness and negligence of. defendant in placing said poles within a distance of four and one-half feet of said railroad track; that if defendant had placed said trolley-poles farther away from said railroad track, which could have been done, said poles would have answered the same purpose.

The second paragraph alleges, substantially, the same facts as the first, except that it does not negative assumption of risk, and alleges that the pole which plaintiff’s hand came in contact with was crooked; that owing to the carelessness and negligence of defendant in using said pole with the crook, causing that part of the pole to be nearer to the hand and arm of plaintiff in giving signals, he received the injuries complained of.

A separate demurrer for want of facts was overruled to each paragraph, and an answer was filed in general denial. The cause was submitted to a jury and a verdict returned in favor of appellee. With the general verdict the jury returned answers to interrogatories. Over appellant’s motion for a new trial judgment was rendered upon the verdict

The assignment of errors questions the sufficiency of each paragraph of the complaint, the correctness of the ruling1 on appellant’s motion for judgment on the answers to interrogatories, and the overruling of appellant’s motion for a new trial.

1. 2. The objections to the first paragraph of complaint are, that it fails to charge a violation of a duty owing to appellee, and that the general allegations of the servant’s want of knowledge of the alleged defect or danger is overcome by facts specifically alleged, where it appears that the defect and danger were obvious, and nothing is alleged showing want of opportunity to know of their existence. It is the duty of the master to furnish a reasonably . safe place in which his employe is required to work. The facts set out bring the case within this rule. The complaint avers that at the time plaintiff was injured he had no knowledge of the dangerous proximity of the trolley-pole. This averment was sufficient. Baltimore, etc., R. Co. v. Abegglen (1908), 41 Ind. App. 603. Assumption of risk implies knowledge of danger. Denial of knowledge is equivalent to a denial of assumption of risk. The specific averments of fact in question are not sufficient to overthrow this denial of knowledge.

3. Each paragraph charges a violation of a common-law duty of the master to his servant. In such actions a complaint for personal injuries should, in some form, deny the assumption of risk upon the part of the servant.

4. 5. The objection urged to the second paragraph of complaint is that it does not deny that appellee assumed the risk. Said paragraph fails to deny this assumption, either directly or by inference. The demurrer should have been sustained. Therefore, unless it affirmatively appears that the verdict rests upon, the first paragraph of the complaint, the judgment must be reversed. Lake Erie, etc., R. Co. v. McFall (1905), 165 Ind. 574; Southern R. Co. v. Jones (1904), 33 Ind. App. 333; Baltimore, etc., R. Co. v. Hunsucker (1904), 33 Ind. App. 27; Norton-Reed Stone Co. v. Steele (1903), 32 Ind. App. 48; Walker v. Heller (1885), 104 Ind. 327.

The verdict is general, and it does not affirmatively appear that the judgment rests upon the first paragraph. Judgment reversed, with instructions to sustain the demurrer to the second paragraph, and for further proceedings consistent with this opinion.