Lake Shore & Michigan Southern Railway Co. v. Kurtz

Lotz, J. The appellee was employed by the appellant as a brakeman on its railroad. While so employed he received personal injuries, which, he alleges, were caused by the negligence of the appellant. Appellant’s demurrer for want of sufficient facts was overruled to the complaint; and it then answered in two paragraphs. A demurrer was sustained to the first; the second being the general denial. William J. Davis was appointed special judge to try the case, and to his appointment appellant objected, and renewed its objections to the said special judge presiding, and proceeding to try said cause, at the first opportunity, when said Davis proceeded to act therein. The trial resulted in a verdict for appellee in the sum of $1,217.41, and final judgment followed. — 61 — A motion for a new trial was overruled. Appellant excepted to these various adverse rulings, and assigns each of them as error in this court. The complaint is in one paragraph. Omitting the formal parts, the substantial averments are: That on the 7th day of November, 1889, plaintiff was in the employ of the defendant as abrakeman on its freight trains; that on said day he was on one of the cars belonging to the defendant, attached to train No. 47, en route for the city of Chicago, and in the discharge of his duty as said brakeman; that while so engaged he received orders to set the brake on said car for the purpose of stopping said train at Miller’s Station; that while engaged in setting said brake in obedience to said order, the brakeshaft broke in plaintiff’s hands and threw plaintiff off said car, causing him great and permanent injury and rendering him an invalid for life; "that said brakeshaft was defective and broken at the time the plaintiff was ordered to use it, as aforesaid, by being more than half broken through its diameter, which defect was not to be observed without inspection; plaintiff says that the time he used said brakeshaft he had no knowledge that the same was defective or unsafe, but thought, and had a right to think, that the defendant would not supply him with a dangerous and defective appliance with which to perform his duty.” He further avers that he was carefully performing said duty and was wholly without fault; that said injury and damages occurred by reason of the said carelessness and negligence of the defendant. There is no charge in the complaint, that the brake-shaft was not suitable in kind and perfect in quality at the time the defendant fitted it to the car; nor is there an averment that the defendant knew of the defect in the brakeshaft at any time before the accident. Appel — 62 — lant concedes that it is sufficient to plead negligence and the want of contributory negligence in general terms where no question of notice is involved, and that the complaint is sufficient in this respect. But it is contended that as it was the duty of the defendant to supply suitable and reasonably safe appliances in the first instance, and to exercise care in keeping them reasonably safe, the presumptions arise that the defendant did its whole duty in both respects; and that these presumptions must prevail in the absence of an averment negativing them. In other words, that the same rule applies with reference to notice in the case of- injury resulting from defective machinery, as applies in case of the negligence of a fellow-servant. In the latter case the complaint must allege either that the master had not exercised ordinary care and prudence in the employment of such fellow-servant, or that he had retained him in his service after he had received notice that he was negligent in the discharge of the duties of his position. It is asserted that the cause of action made by the complaint is based on the breach of duty, in not exercising reasonable diligence in the supervision and inspection of the brakeshaft, and that it is incumbent on the pleader, in order to show a breach of that duty, to aver the defendant’s knowledge of the deficiency or an opportunity to acquire such knowledge. It was the rule at common law, and is the rule under our code, that negligence may be pleaded in general terms. This is the general rule. It is true that the allegations must not be so vague and uncertain as to admit of almost any kind of proof. But if enough be alleged to show the existence of a legal duty and its breach, a very slight designation that the act done, or omitted to be done, was committed or omitted in the absence of due care, is sufficient to support a charge of negligence. Jef — 63 — fersonville, etc., R. R. Co. v. Dunlap, 29 Ind. 426; Indianapolis, etc., R. R. Co. v. Keeley’s Admr., 23 Ind. 133; Ohio, etc.,R. W. Co.v. Selby, 47 Ind. 471; St. Louis, etc., R. W.Co. v. Mathias, 50 Ind. 65; Ware v. Gay, 11 Pick. 106; 2 Chit. Pl. 334, 343, 653. The general allegation of negligence has a technical significance, and admits of proof of any facts tending to show its truth. Evansville, etc., R. R. Co. v. Crist, 116 Ind. 446; Town of Salem v. Goller, 76 Ind. 291. Where a duty rests primarily on a defendant, and the averments show the breach of the duty by the acts of such defendant, a general allegation of negligence is all that is necessary. Notice of the breach or default is involved in the act itself. But where the default is brought about by the intervening agency of another, then the complaint, to be good, must show that the defendant had notice, either by direct averments, or as a necessary implication from the facts alleged, and a general averment is not sufficient. City of Fort Wayne v. DeWitt, 47 Ind. 391. It is the duty of the master to furnish his servant with reasonably safe tools, appliances, and machinery with which to work; and this duty is a continuing one. The master is bound to take notice that the tools, appliances, and machinery are liable to wear out and become defective with age and use. The servant may repose confidence in the prudence and caution of the master, and rest on the presumption that he has discharged his whole duty in supplying reasonably safe machinery and appliances, and that he will exercise reasonable supervision to keep the same safe. Indiana Car Co. v. Parker, 100 Ind. 181; Bradbury v. Goodwin, 108 Ind. 286; Louisville, etc., R. W. Co. v. Buck, Admr., 116 Ind. 566; Pennslyvania Co. v. Brush, Admx., 130 Ind. 347. It is also the duty of the master to employ competent — 64 — and skillful servants in tlie first instance, and he is liable for the acts of an incompetent or careless servant whom he continues in his employ after knowledge of such incompetency or carelessness. Some courts make a distinction between the duty in the supervision of the machinery and appliances to keep them safe, and the duty of the supervision of the servants, to know that they are competent and careful. The reason given for this distinction is that when a competent and careful servant has been employed the presumption is that he will become more competent and skillful with experience; whilst with machinery the presumption is that with use and time it will deteriorate and become defective. Mr. Thompson, in his valuable work on Negligence, p. 985, says that the reasoning on which this distinction is based is unsatisfactory. The Supreme Court of this State has followed this distinction, and a complaint to recover damages for the negligence of a co-employe must aver either that the master did not exercise ordinary care and prudence in the employ of the fellow-servant, or that he retained such servant, after he had received notice of the incompetency and negligence of such servant. A general allegation of negligence in such cases does not cover the question of notice. Indiana, etc., R. W. Co. v. Dailey, 110 Ind. 75; Lake Shore, etc., R. W. Co. v. Stupak, 108 Ind. 1. It has been expressly decided by the Supreme Court of this State, in a number of cases, that in an action to recover for the negligence of the master in failing to provide and keep machinery and appliances reasonably safe, a general allegation of negligence in the complaint is sufficient, and covers the question of notice. Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151 (155); Ohio, etc., R. W. Co. v. Pearcy, Admx., 128 Ind. 197 (205); Louisville, etc., R.R. Co. v. Utz, Admr., 138 Ind. 265. — 65 — Filed Nov. 10, 1893. The more recent decisions of that court, however, have departed from this rule, and it is now held that a general allegation of negligence is insufficient in such cases; that it is as necessary to aver that the master had notice of the defective machinery and appliances as to aver that he had notice of the unskilfulness and incompetency of a fellow-servant. Evansville, etc., R. R. Co. v. Duel, 134 Ind. 156; Pennsylvania Co. v. Congdon, 134 Ind. 226. There is no direct averment in the complaint in this case that the appellant had any notice of the defect in the brake shaft, nor are there any other facts averred from which notice of the defect follows as a necessary inference. In view of the cases last cited, and in view of section 3 of the act of February 16th, 1893, Acts of 1893, p. 31, we feel constrained to hold the complaint insufficient. Judgment reversed at cost of appellee, with instructions to sustain the demurrer to the complaint.