Di Marcho v. Builders Iron Foundry

Since a corporation can only act through its servants and agents, we think the allegation in the declaration that the corporation threw or caused to be thrown a box, etc., equivalent to an allegation that the corporation did the act by its servantsand agents. The allegation that the plaintiff at the time of receiving the injuries complained of, was and had been for a long time prior thereto employed by the defendant corporation in and about its grounds, buildings and machinery, to assist in the work of carrying on its foundry business, and that at the time of receiving such injuries he was engaged in said employment on the grounds of the defendant corporation near said pile of iron posts or columns, sufficiently sets forth the plaintiff's relation to the corporation as its servant or employee engaged in the duty of his employment at the time of receiving the injuries, to show that it was bound to the exercise of due care on its part not to expose him unnecessarily to injury. The defendant objects to the sufficiency of the allegation that the plaintiff was in the exercise of due care. He insists that such an allegation is merely an inference or conclusion of law and that the plaintiff should set forth particularly the acts he was engaged in doing at the time of receiving the injuries, so that it may appear whether or not he was in the exercise of due care. We do not agree with the defendant that the allegation that the plaintiff was in the exercise of due care is an inference or conclusion of law; it is rather, at least generally, an inference of fact. Inasmuch, however, as the declaration does not set forth specifically what the plaintiff was employed to do, but only generally that he was *Page 516 employed to assist in the work of carrying on the defendant's business, we think that the plaintiff may properly be required to state the particular work he was engaged in at the time of receiving the injuries in connection with the allegation that he was in the exercise of due care. We are not aware that any greater particularity of allegation in this respect has ever been considered essential, and we think that it is sufficient. To this extent the demurrer is sustained. The plaintiff then amended his declaration and the defendant demurred to the amended declaration. June 12, 1893.