§ 7536. Averment as to the Rules for the Government of Employés. The failure of the employer to promulgate rules to prevent injuries need not be charged specially, the default in this respect being suficiently covered by the general charge of negligence.68 So, a railroad company may, in support of its plea of contributory negli gence in an action for the death of an engineer caused by cars coming in contact with his engine while he was inspecting it, prove a rule making it the duty of an engineer going into a dangerous place about his engine, to notify all persons working about the train, and this will be the case though the rule is not pleaded. A complaint. by an employé against his employer, for damages for personal injuries, in which the only negligence alleged is the latter's failure to adopt and promulgate reasonable rules and regulations, is not sustained by proof, not that the rules were not made and promulgated, but that plaintiff never saw, and was never informed of or furnished with any rules.70 69 § 7537. Fellow Servants."-The fellow-servant doctrine relieves a master from liability for injuries inflicted upon the servant by the negligence of a fellow servant in the same common employment, unless such injuries are traceable to the personal negligence of the master or to the negligence of some agent of the master for whose conduct in the particular case the master is responsible.72 Hence good pleading requires a complaint, alleging injury to plaintiff through the negligence of another servant, to aver facts to take the case out of the general rule. And where this is done it is not necessary to deny mon, 23 Ind. App. 319; s. c. 55 N. E. Rep. 454; American Strawboard Co. v. Foust, 12 Ind. App. 421; s. c. 39 N. E. Rep. 891. 68 Wild v. Oregon &c. R. Co., 21 Or. 159; s. c. 27 Pac. Rep. 954. But see Delaware &c. R. Co. v. Voss, 62 N. J. L. 59; s. c. 5 Am. Neg. Rep. 55; 12 Am. & Eng. R. Cas. (N. S.) 820; 41 Atl. Rep. 224. 69 Gibson v. Burlington &c. R. Co., 107 Iowa 596; s. c. 78 N. W. Rep. 190; 5 Am. Neg. Rep. 325. 70 Corcoran v. Delaware &c. R. Co., 47 N. Y. St. Rep. 147; s. c. 19 N. Y. Supp. 994. 71 See also, Vol. IV, § 4905. 72 Vol. IV, § 4846. 7 Clyde v. Richmond &c. R. Co., 59 Fed. Rep. 394; McCosker v. Hilton &c. Co., 110 Ga. 328; s. c. 35 S. E. Rep. 369; Indianapolis &c. R. Co. v. Johnson, 102 Ind. 352; Hagins v. Cape Fear &c. R. Co., 106 N. C. 537; s. c. 11 S. E. Rep. 590; Miller v. Coffin, 19 R. I. 164; s. c. 36 Atl. Rep. 6. A declaration which charges that plaintiff was injured by the negligence of defendant's servants, without alleging that they were not the plaintiff's fellow servants, is not sufficient: East St. Louis &c. R. Co. v. Dwyer, 41 Ill. App. 522. A declaration alleging that defendant railway company negligently loaded a car with railroad iron so that the bars projected over the end, and negligently accepted it for transportation when unsafe and unfit for coupling, which was known to the company, but not to a brakeman injured while attempting to couple the car, is not demurrable as showing on its face that the injury was caused by the acts of fellow servants of plaintiff: Jacksonville &c. R. Co. v. Galvin, 29 Fla. 636; s. c. 16 L. the existence of the relation.74 It is not necessary to set out the names of the agents or servants whose negligence caused the injury.75 Where, however, the particular superior is designated the plaintiff will be held to the allegation and will not be allowed to show that the injury was received while working under the direction of another person. Great particularity is not required in the allegation that the act was that of a vice-principal. Thus, a complaint has been upheld as sufficient which alleged that the injuries were received in consequence of the negligence of the master mechanic, having sole control of the switch yards where the accident took place, without stating the size of the yard, the amount of responsibility, or vastness of the business entrusted to him, or the extent of his control." In this connection it is proper to state that the complaint should showthat some duty of the master has been violated by the vice-principal in order to make the master liable.78 § 7538. Incompetency of Fellow Servants. As heretofore pointed out, the negligence of the master may consist in the employment or retention of incompetent, unskillful, habitually negligent or otherwise incompetent and unfit servants. Where the servant is injured through the negligence of a fellow servant, the declaration will be defective unless there is an averment that the employer has been negligent either in employing or retaining the fellow servant.80 Where it A R. A. 337; 11 South. Rep. 231. count in a declaration in an action for personal injuries is bad where it alleges in effect that the negligence complained of was that of a fellow servant, for which defendant, prima facie, was not liable: Laporte v. Cook, 20 R. I. 261; s. c. 38 Atl. Rep. 700. "Chicago City R. Co. v. Leach, 80 Ill. App. 354; Chicago &c. R. Co. v. Swan, 176 Ill. 424; s. c. 4 Chic. L. J. Wkly. 132; 12 Am. & Eng. R. Cas. (N. S.) 674; 52 N. E. Rep. 916; aff'g s. c. 70 Ill. App. 331; Libby v. Scherman, 146 Ill. 540; S. c. 34 N. E. Rep. 801; East St. Louis Connecting R. Co. v. Dwyer, 41 Ill. App. 522; Hess v. Rosenthal, 160 Ill. 621; s. c. 43 N. E. Rep. 743; Braun v. Conrad Seipp Brew. Co., 72 Ill. App. 232; Bowling Green Stone Co. v. Capshaw, 23 Ky. L. Rep. 945; s. c. 64 S. W. Rep. 507. But see Di Marcho v. Builders' Iron Foundry, 18 R. I. 514; s. c. 27 Atl. Rep. 328. Woodson v. Johnston, 109 Ga. 454; s. c. 34 S. E. Rep. 587; Bolin v. Southern R. Co., 65 S. C. 222; s. c. 43 S. E. Rep. 665; Texas &c. R. Co. v. Easton, 2 Tex. Civ. App. 378; s. c.. 21 S. W. Rep. 575. 76 Collier v. Coggins, 103 Ala. 281; s. c. 15 South. Rep. 578. "Mealman v. Union &c. R. Co., 37 Fed. Rep. 189; s. c. 2 L. R. A. 192; 2 Denver Legal News 51. A paragraph in a complaint against a corporation for the death by negligence of an employé is not bad as affirmatively showing the injury to have been caused by the negligence of a co-employé, in alleging that "defendant, by its agents and employés acting under the orders of its superintendent and foreman," committed the wrongful act which caused such death: Hoosier Stone Co. v. McCain, 133 Ind. 231; s. c. 31 N. E. Rep. 956. 78 New Pittsburg Coal &c. Co. v. Peterson, 136 Ind. 398; s. c. 35 N. E. Rep. 7. 79 Vol. IV, § 4882. So Collier v. Steinhart, 51 Cal. 116; § 7536. Averment as to the Rules for the Government of Employés. The failure of the employer to promulgate rules to prevent injuries need not be charged specially, the default in this respect being sufficiently covered by the general charge of negligence.68 So, a railroad company may, in support of its plea of contributory negli gence in an action for the death of an engineer caused by cars coming in contact with his engine while he was inspecting it, prove a rule making it the duty of an engineer going into a dangerous place about his engine, to notify all persons working about the train, and this will be the case though the rule is not pleaded. A complaint by an employé against his employer, for damages for personal injuries, in which the only negligence alleged is the latter's failure to adopt and promulgate reasonable rules and regulations, is not sustained by proof, not that the rules were not made and promulgated, but that plaintiff never saw, and was never informed of or furnished with any rules,70 § 7537. Fellow Servants."-The fellow-servant doctrine relieves a master from liability for injuries inflicted upon the servant by the negligence of a fellow servant in the same common employment, unless such injuries are traceable to the personal negligence of the master or to the negligence of some agent of the master for whose conduct in the particular case the master is responsible. Hence good pleading requires a complaint, alleging injury to plaintiff through the negligence of another servant, to aver facts to take the case out of the general rule.73 And where this is done it is not necessary to deny mon, 23 Ind. App. 319; s. c. 55 N. E. Rep. 454; American Strawboard Co. v. Foust, 12 Ind. App. 421; s. c. 39 N. E. Rep. 891. 68 Wild v. Oregon &c. R. Co., 21 Or. 159; s. c. 27 Pac. Rep. 954. But see Delaware &c. R. Co. v. Voss, 62 N. J. L. 59; s. c. 5 Am. Neg. Rep. 55; 12 Am. & Eng. R. Cas. (N. S.) 820; 41 Atl. Rep. 224. 69 Gibson v. Burlington &c. R. Co., 107 Iowa 596; s. c. 78 N. W. Rep. 190; 5 Am. Neg. Rep. 325. 70 Corcoran v. Delaware &c. R. Co., 47 N. Y. St. Rep. 147; s. c. 19 N. Y. Supp. 994. 71 See also, Vol. IV, § 4905. 72 Vol. IV, § 4846. 73 Clyde v. Richmond &c. R. Co., 59 Fed. Rep. 394; McCosker v. Hilton &c. Co., 110 Ga. 328; s. c. 35 S. E. Rep. 369; Indianapolis &c. R. Co. v. Johnson, 102 Ind. 352; Hagins v. Cape Fear &c. R. Co., 106 N. C. 537; s. c. 11 S. E. Rep. 590; Miller v. Coffin, 19 R. I. 164; s. c. 36 Atl. Rep. 6. A declaration which charges that plaintiff was injured by the negligence of defendant's servants, without alleging that they were not the plaintiff's fellow servants, is not sufficient: East St. Louis &c. R. Co. v. Dwyer, 41 Ill. App. 522. A declaration alleging that defendant railway company negligently loaded a car with railroad iron so that the bars projected over the end, and negligently accepted it for transportation when unsafe and unfit for coupling, which was known to the company, but not to a brakeman injured while attempting to couple the car, is not demurrable as showing on its face that the injury was caused by the acts of fellow servants of plaintiff: Jacksonville &c. R. Co. v. Galvin, 29 Fla. 636; s. c. 16 L. the existence of the relation.74 It is not necessary to set out the names of the agents or servants whose negligence caused the injury.75 Where, however, the particular superior is designated the plaintiff will be held to the allegation and will not be allowed to show that the injury was received while working under the direction of another person.76 Great particularity is not required in the allegation that the act was that of a vice-principal. Thus, a complaint has been upheld as sufficient which alleged that the injuries were received in consequence of the negligence of the master mechanic, having sole control of the switch yards where the accident took place, without stating the size of the yard, the amount of responsibility, or vastness of the business entrusted to him, or the extent of his control." In this connection it is proper to state that the complaint should show that some duty of the master has been violated by the vice-principal in order to make the master liable.78 § 7538. Incompetency of Fellow Servants.-As heretofore pointed out, the negligence of the master may consist in the employment or retention of incompetent, unskillful, habitually negligent or otherwise incompetent and unfit servants.79 Where the servant is injured through the negligence of a fellow servant, the declaration will be defective unless there is an averment that the employer has been negligent either in employing or retaining the fellow servant.80 Where it A R. A. 337; 11 South. Rep. 231. count in a declaration in an action for personal injuries is bad where it alleges in effect that the negligence complained of was that of a fellow servant, for which defendant, prima facie, was not liable: Laporte v. Cook, 20 R. I. 261; s. c. 38 Atl. Rep. 700. Chicago City R. Co. v. Leach, 80 Ill. App. 354; Chicago &c. R. Co. v. Swan, 176 Ill. 424; s. c. 4 Chic. L. J. Wkly. 132; 12 Am. & Eng. R. Cas. (N. S.) 674; 52 N. E. Rep. 916; aff'g s. c. 70 Ill. App. 331; Libby v. Scherman, 146 Ill. 540; s. c. 34 N. E. Rep. 801; East St. Louis Connecting R. Co. v. Dwyer, 41 Ill. App. 522; Hess v. Rosenthal, 160 Ill. 621; s. c. 43 N. E. Rep. 743; Braun v. Conrad Seipp Brew. Co., 72 Ill. App. 232; Bowling Green Stone Co. v. Capshaw, 23 Ky. L. Rep. 945; s. c. 64 S. W. Rep. 507. But see Di Marcho v. Builders' Iron Foundry, 18 R. I. 514; s. c. 27 Atl. Rep. 328. 7 Woodson v. Johnston, 109 Ga. 454; s. c. 34 S. E. Rep. 587; Bolin v. Southern R. Co., 65 S. C. 222; s. c. 43 S. E. Rep. 665; Texas &c. R. Co. v. Easton, 2 Tex. Civ. App. 378; s. c.. 21 S. W. Rep. 575. 76 Collier v. Coggins, 103 Ala. 281; s. c. 15 South. Rep. 578. 77 Mealman v. Union &c. R. Co., 37 Fed. Rep. 189; s. c. 2 L. R. A. 192; 2 Denver Legal News 51. A paragraph in a complaint against a corporation for the death by negligence of an employé is not bad as affirmatively showing the injury to have been caused by the negligence of a co-employé, in alleging that "defendant, by its agents and employés acting under the orders of its superintendent and foreman," committed the wrongful act which caused such death: Hoosier Stone Co. v. McCain, 133 Ind. 231; s. c. 31 N. E. Rep. 956. 78 New Pittsburg Coal &c. Co. v. Peterson, 136 Ind. 398; s. c. 35 N. E. Rep. 7. 79 Vol. IV, § 4882. 80 Collier v. Steinhart, 51 Cal. 116; is claimed that the injuries resulted from this cause it is not necessary to set out the particulars of the incompetency of the negligent servant. A general allegation of unfitness, and of knowledge of that fact by the master, and of ignorance thereof by the servant, will suffice.81 The pleader need not state names and official positions of the officers of the corporation having notice of the incompetency of the negligent servant.s2 The evidence as to the incompetency of employés must be restricted to the employé or employés charged in the petition to have been incompetent.83 Negligence in the employment of the incompetent servant is sufficiently averred by an allegation that the employer's act of hiring the servant was careless and negligent, and that in consequence thereof an incompetent servant was employed.84 But the charge of incompetency must be clearly made. An allegation that certain employés were negligent and careless is not equivalent to an allegation that they were incompetent.85 A like rule governs the averment of want of knowledge of the incompetency of the negligent fellow servant by the injured servant, and this fact will not be regarded as sufficiently pleaded by an allega Sullivan v. Toledo &c. R. Co., 58 81 Conrad v. Gray, 109 Ala. 130; s. c. 19 South. Rep. 398; Johnston v. Canadian &c. R. Co., 50 Fed. Rep. 886; Christian v. Columbus &c. R. Co., 90 Ga. 124; s. c. 15 S. E. Rep. 701; Chicago &c. R. Co. v. Beatty, 13 Ind. App. 604; s. c. 40 N. E. Rep. 753; Indiana &c. R. Co. v. Daily, 110 Ind. 75; s. c. 8 West. Rep. 516; Helfrich v. Williams, 84 Ind. 553; Wabash &c. R. Co. v. Morgan, 132 Ind. 430; s. c. 31 N. E. Rep. 661; Lake Shore &c. R. Co. v. Stupak, 123 Ind. 210; s. c. 23 N. E. Rep. 246; 41 Am. & Eng. R. Cas. 382. A petition in an action for personal injuries to an employé, alleging that the employer's act of employing the servant by whose negligence plaintiff was injured was careless and negligent, and that in consequence thereof an incompetent servant was employed, sufficiently avers that the employer knew or ought to have known of the servant's incompetency: Galveston Rope &c. Co. v. Burkett, 2 Tex. Civ. App. 308; s. c. 21 S. W. Rep. 958. An allegation in a complaint in an action for causing the death of plaintiff's intestate, that an engine was in being managed and run by a fireman of little or no experience in the management of an engine, sufficiently advises the company that they will be obliged to defend for failure to keep a competent engineer: Norfolk &c. R. Co. v. Thomas, 90 Va. 205; s. c. 17 S. E. Rep. 884. Allegations that an employé charge of an engine was not a skilled or practical engineer, but was incompetent, and that the company was negligent in employing and retaining him, are insufficient to charge the company with liabil ity to another employé who sustained injuries by the alleged negligence of the engineer, unless it is also averred that such other was himself ignorant of the engineer's incompetency: Spencer v. Ohio &c. R. Co., 130 Ind. 181; s. c. 29 N. E. Rep. 915. 82 Lake Shore &c. R. Co. v. Stupak, 123 Ind. 210; s. c. 23 N. E. Rep. 246; 41 Am. & Eng. R. Cas. 382. 83 Gulf &c. R. Co. v. Beall (Tex. Civ. App.), 43 S. W. Rep. 605. 84 Galveston Rope &c. Co. V. Burkett, 2 Tex. Civ. App. 308; S. c. 21 S. W. Rep. 958; Indiana &c. R. Co. v. Daily, 110 Ind. 75; s. c. 8 West. Rep. 516. 85 Kelly v. Cable Co., 13 Mont. 411; s. c. 34 Pac. Rep. 611. |