Walker v. Wehking

Henley, J. Appellant commenced this action by complaint in two paragraphs, in which he seeks to recover damages on account of an injury received by him while in appellees’ employ. The first paragraph of the complaint, avers that his injury was caused by the alleged negligent — 63 — acts of appellees. The second paragraph avers that the injury was wilfully committed. The trial court sustained appellees’ demurrer to each paragraph of the complaint, and, appellant refusing to plead further, judgment was rendered that he take nothing by his action. The only question here for consideration is the correctness of the ruling of the trial court in sustaining the demurrer to each paragraph of the complaint. It is averred in the first paragraph of complaint that appellee Charles E. Wehking is a contractor; that appellee Eesener is his superintendent of construction; that appellee Schulmier is his foreman; that on the 9th day of June, 1897, appellees were engaged in the construction of what is known as the “Park theater,” at the corner of Washington street and Capitol avenue, in the city of Indianapolis; that said building is of brick, and on said date the walls had been built up a little beyond the third story; that at each story there was constructed a temporary flooring, extending for a distance of eight feet from the walls of said building, and that a scaffolding was built out at a distance of five feet from said walls upon which was laid a platform for the use of the masons and builders in constructing said walls; that at the said time the brick used in constructing said walls was brought up to the third floor in wheelbarrows, loaded on a “hoist” eight feet square; that a temporary flooring was laid from the “hoist” at the third floor landing to the flooring which .extended around the walls as aforesaid; that appellant had been employed prior to this time in loading the wheelbarrows with brick and wheeling them upon the “hoist” at the ground floor, but that on the day that he received his injury he was directed by the foreman to leave his work on the first floor and come to the third floor and wheel the brick from the hoist along the temporary flooring to the second temporary flooring, which extended around the walls of the building; “that, in wheeling said brick, he pushed the wheelbarrow ahead of him, so that — 64 — Ms view of the flooring was, for some distance in advance of him, cut off by the brick piled upon the loaded wheelbarrow, and within a period of five minutes from his coming to the third floor, as aforesaid, the wheel of the wheelbarrow struck a brick that had rolled near the edge of the flooring, and that had not been seen by plaintiff, and such striking stopped the movement of the wheelbarrow, and caused the plaintiff to lose his balance, and to fall off the edge of the flooring into the open way immediately east thereof.” The negligence charged is in ordering appellant to work in a hazardous place, — made so by the fact that brick were left scattered on the floor, and the further fact that no railing was erected to prevent passers-by from falling into the open space.to the east of the flooring. AVheeling brick at the third story of the building was as much within the scope of appellant’s employment as wheeling brick at the first floor. Appellant was transferred from his work of wheeling the brick to the hoist on the first floor, and set to work wheeling brick from the hoist-on the third floor. The defects and danger complained of were open alike to the observation of both master and servant. The presence of the thing which resulted in appellant’s mishap, and the absence of the thing which appellant claims, if present, would have saved him, were open and obvious to both master and servant. It did not require even a casual examination to know these things. The unbroken line of authorities in this State is to the effect that where the danger is open alike to the observation of both master and servant, — where the servant has equal opportuMty with the master to see and know, or where the servant, in the exercise of reasonable care, looking to his own safety, would discover the defects or danger, — the risk is assumed. Wabash R. Co. v. Ray, 152 Ind. 392; Swanson v. City of Lafayette, 134 Ind. 625, 627; Big Creek Stone Co. v. Wolf, 138 Ind. 496, 499; Vincennes, etc., Co. v. White, 124 Ind. 376; Wolf v. Big Creek Stone Co., 148 — 65 — Ind. 317; Day v. Cleveland, etc., R. Co., 137 Ind. 206, 210; Indiana, etc., R. Co. v. Dailey, 110 Ind. 75; Stewart v. Pennsylvania Co., 130 Ind. 242, 247; City of Plymouth v. Milner, 117 Ind. 324; Lake Shore, etc., R. Co. v. Pinchin, 112 Ind. 592; Brazil Block Coal Co. v. Hoodlet, 129 Ind. 327; Lake Shore, etc., R. Co. v. McCormick, 74 Ind. 440; Island Coal Co. v. Greenwood, 151 Ind. 476; Peerless Stone Co. v. Wray, 143 Ind. 574; Salem-Bedford Stone Co. v. Hobbs, 144 Ind. 146; Sheets v. Chicago, etc., R. Co. v. Kemper, 147 Ind. 561; Diamond Plate Glass Ind. 363; Evansville, etc., R. Co. v. Duel, 134 Ind. 156; Hoosier Stone Co. v. McCain, 133 Ind. 231; Louisville, etc., R. Co. v. Kemper, 147 Ind. 561; Diamond Plate Glass Co. v. DeHority, 143 Ind. 381, 386. We think the allegations of the first paragraph of complaint also show that appellant was guilty of negligence which contributed to his injury. The accident was caused solely by the striking of the brick with the wheel of the wheelbarrow. But the complaint wholly fails to aver that appellees, or either of them, knew that the brick was where it would or could be struck, or that it was, by either of them, negligently placed where it was. It is apparent from the averments of the complaint that appellant had passed by and over this same brick at least four times before he ran his wheelbarrow against it. Appellant was used to the work of wheeling brick on a wheelbarrow. Tie knew the unstable condition of a wheelbarrow piled high with brick, when being pushed along the way provided. He must have known that if he struck a brick with the wheel while pushing a loaded wheelbarrow, the wheelbarrow would be jerked violently either to one side or the other, and that his safety would thereby be endangered. We think the first paragraph of the complaint clearly bad. The second paragraph of the complaint attempts to charge that the injury to appellant was wilfully done and — 66 — committed. The averments in -this regard are as follows: “That said defendant Edward IT. Resener, as superintendent, had charge and control of all the employes of said defendant Wehlcing, and it was the duty of this plaintiff to follow his directions and obey his commands; that both defendants Resener and Schulmier acted within the scope of their authority; that they both had full charge and control over the construction of said building, and had knowledge that said flooring was so covered with brick as that only a narrow way next to the open space was left, whereon it was necessary to walk in wheeling said brick, and had knowledge that there was no railing along the edge of said flooring’ to protect the passer-by from falling into the open space, and had knowledge that the wheeling of brick along said narrow way was accompanied by great hazard, and had knowledge that plaintiff was unaccustomed to work in such places of danger, and did not, in point of fact, know of the danger aforesaid; and that, notwithstanding such knowledge, the defendants, in reckless disregard of human life, and with the wilful intent to injure such person as should undertake such employment, failed and refused to place proper guards about such open space, and required the plaintiff to work in such place of hazard.” The description of the place and of the events leading up to the accident and of the manner in which it occurred is detailed in the second paragraph of complaint -in a manner not materially different from the first paragraph of complaint. Wilfulness can not exist without purpose or design. It involves conduct which is quasi criminal. Parker v. Pennsylvania Co., 134 Ind. 673, 23 L. R. A. 552, and cases cited. It was said in Kalen v. Terre Haute, etc., R. Co., 18 Ind. App. 202, 63 Am. St. 343, that: “To be good as a complaint for wilful injury, it should show by some consistent form of averment that the injurious act was purposely done with the intent on the part of the doer to inflict wilfully and purposely the particular injury of which complaint is — 67 — made.” See, also, Gregory v. Cleveland, etc., R. Co., 112 Ind. 385; Miller v. Miller, 17 Ind. App. 605. Wilfulness is a desire or intention to produce a certain result. Barr v. Chicago, etc., R. Co., 10 Ind. App. 433. The complaint in this case does not charge that the act by -which appellee was injured was wilfully done, with the intent, upon the part of appellees, wilfully and purposely to inflict the particular injury of which complaint is made. It falls far short of such a showing. If we should hold that the words “such person,” in the averment, “and with the wilful intent to injure such person as should undertake such employment,” meant appellant, still the wilful intent is directed to the doing of certain acts which it is alleged caused the place where appellant worked to become a place of hazard; it is not directed to the inflicting of the particular injurious act here complained of. We think the trial court correctly sustained the demurrer of appellees to both paragraphs of appellant’s complaint. Judgment affirmed. Comstock, O. J., Black, Robinson, and Wiley, JJ., concur.