tion that plaintiff was "wholly unacquainted" with such servant.86 So, an allegation that the master retained the servant in his employ after knowledge that he was unfit to be so retained, is not equivalent to an allegation that the master employed an unfit servant without proper inquiry as to his fitness. These allegations tender distinct issues; and although proof of either is sufficient to make out an action. against the master, yet proof of one of them will not be responsive to the other.8 87 § 7539. Insufficiency of Force.-A recovery can be had by an employé for personal injuries, because of the employment of an insufficient number of men to perform a particular work, only where the declaration sets up such inadequacy as a ground of negligence relied upon.88 It has been held that such a claim was sufficiently averred in a complaint which alleged that defendant did not use its trains, provide servants, etc., so as to avoid extraordinary risks to its employés, and that by reason of the negligent use of its cars, engines, etc., and by failure to employ a sufficient number of servants, the extraordinary risk was not avoided.90 Where the complaint for injuries sustained while in defendant's employ by the slipping of a log from a dolly on which it was being carried alleged negligence of defendant in failing to furnish sufficient men to do the work with safety, it was considered unnecessary separately to allege a failure to block or fasten the log on the dolly, since that fact was only a circumstance rendering it necessary to furnish additional men."1 § 7540. Assumption of Risk.-Where, a person is employed to work in a perilous service, if the danger belongs to the work he undertakes or the service in which he engages, he will be held to all the risks which belong to either; but where there is no danger in the work or service by itself, and the peril grows out of extrinsic causes or circumstances, which cannot be discovered by the use of ordinary precaution and prudence, the employer would be answerable precisely as a third person, if the injury was occasioned by his neglect or want of care.92 Hence, in an action against a railroad company for the killing of a fireman engaged in the line of his duty, where the declaration alleged that the death was occasioned by reason of 86 Lake Shore &c. R. Co. v. Stupak, 108 Ind. 1. 87 Union Pac. R. Co. v. Young, 8 Kan. 658. 89 East Tennessee Coal Co. V. Daniel, 100 Tenn. 65; s. c. 42 S. W. Rep. 1062. 90 Harper v. Norfolk &c. R. Co., 36 Fed. Rep. 102. 1 Supple v. Agnew, 191 Ill. 439; s. c. 61 N. E. Rep. 392; rev'g s. c. sub nom. Agnew v. Supple, 80 Ill. App. 437. 2 Perry v. Marsh, 25 Ala, 659. the original construction of a certain culvert on the line of its road, whereby the train was thrown from the track, it was held unnecessary to allege knowledge, on the part of the defendants, of the defective construction of the culvert.93 A complaint for personal injuries sustained by an employé in consequence of defects which were perfectly obvious and which the master had promised to remedy and failed to do so for an unreasonable time, should also show that the plaintiff was injured while he had a reasonable expectation that the master's promise would be kept.95 The risk cannot be considered as assumed where the employé is ignorant of its existence; and, hence, a complaint will not be demurrable on the ground that it discloses an assumption of risk, where the allegation in terms shows that the plaintiff was ignorant of the existence of the defect. Thus, in am action for death while repairing a tunnel by the falling of stone and the giving way of timbers, a complaint alleging that the tunnel was in a dangerous condition and remained so with defendant's knowl 93 Chicago &c. R. Co. v. Swett, 45 Ill. 197. 5 Stephenson v. Duncan, 73 Wis. 404; s. c. 41 N. W. Rep. 337. A promise by a master to remove a dangerous obstruction, and the servant's reliance thereon, are admissible under the averment in a declaration that the servant was in the exercise of due care at the time he received the injury from such obstruction: Pawnee Coal Co. v. Royce, 79 Ill. App. 469. Arabello v. San Antonio &c. Co. (Tex.), 11 S. W. Rep. 913 (no off. rep.). A complaint based on the theory that an employé was ignorant of the danger to which he was exposed is not supported by proof that he knew of it, but remained in the service upon his employer's promise to provide a remedy: Becker v. Baumgartner, 5 Ind. App. 576; s. c. 32 N. E. Rep. 786. In an action by a servant for injuries, a petition averring that plaintiff called the attention of the boss in control of him to the condition of the belts and wheels of the machine, and of the danger which might result therefrom, and defendant, through such agent, assured plaintiff that it was all right, and to go ahead, and that it was unnecessary to do anything with it, and that plaintiff, relying on such representations, was induced to continue to operate the machine, is not insuf 96 ficient in failing to show plaintiff's ignorance of the condition of the machine at the time of his injury, and of the danger incident to its operation: Stalzer v. Jacob Dold Packing Co., 84 Mo. App. 565. See Walker v. Wehking, 29 Ind. App. 62; s. c. 63 N. E. Rep. 128, for a complaint which did not show that the deceased servant had assumed the risk created by the absence of a safety-gate on the side of an electric street-car. See Citizens St. R. Co. v. Reed, 28 Ind. App. 629; s. c. 63 N. E. Rep. 770, for a petition predicating a right of recovery upon the negligence of workman engaged in the construction of a tower, in letting pieces of timber when sawed off fall upon the plaintiff from above, which was construed as not showing that the plaintiff continued at work with knowledge of the workman above him, and thus stating no cause of action. See American Cotton Co. v. Smith, 29 Tex. Civ. App. 425; s. c. 69 S. W. Rep. 443, for averments in a complaint for personal injuries where plaintiff had stepped upon an uncovered vat of molten metal to hammer a cogwheel and had missed the wheel and fallen into the vat, with the conclusion that the averments were not sufficient to bring the case within a statute imposing upon the employer a liability for the negligence of other employés. edge for a long time, and that deceased, being ignorant of the condition, which was not visible to ordinary observation, was ordered by defendant to work at the place where he was injured, was held not bad, as showing that the work was necessarily hazardous, and that deceased assumed the risk." The Indiana statute abrogating a rule in that State requiring plaintiff to aver and prove his freedom from contributory negligence has been held not to extend beyond its express terms; and hence it does not obviate the necessity of negativing assumption of risk in actions against a master for injuries caused by a failure to furnish safe appliances or a safe place to work.98 § 7541. Injury to Railroad Employés Crossing Tracks.-A complaint alleging that the defendant was walking across the tracks of his employer to the round house, where he was employed, which course was necessarily taken to reach the place of his employment, and that such use of the tracks was known and sanctioned by the defendant, and that the defendant, through its servants, negligently ran an engine and car upon the plaintiff, injuring him, has been held a sufficient statement of this form of negligence to withstand a demurrer for failure to state a cause of action."9 § 7542. Collision with Overhanging Objects.-A complaint in an action for injuries occasioned by a collision with an overhead bridge should allege that the bridge was erected or maintained by the defendant railroad company,100 and in addition that plaintiff exercised reasonable care at the time of the accident, that the company had knowledge of the fact of insufficient height, and that the danger was not a risk incident to plaintiff's employment.101 § 7543. Injuries Received while Coupling Cars.-A complaint in an action for injuries received by a brakeman while coupling cars. which shows clearly the giving of proper signals to the engineer as to the method of backing the engine, is not defective by reason of a 97 Louisville &c. R. Co. v. Graham, 124 Ind. 89; s. c. 24 N. E. Rep. 668. s Indiana Natural Gas &c. Co. v. O'Brien, 160 Ind. 266; s. c. 65 N. E. Rep. 918; 66 N. E. Rep. 742. "Savannah &c. R. Co. v. Chaney, 102 Ga. 814; s. c. 30 S. E. Rep. 437. 100 Louisville &c. R. Co. v. Hall, 87 Ala. 708; s. c. 6 South. Rep. 277; 4 L. R. A. 710. 101 Baltimore &c. R. Co. v. Rowan, 104 Ind. 88; s. c. 1 West. Rep. 914; Louisville &c. R. Co. v. Hall, 87 Ala. 708; s. c. 6 South. Rep. 277; 4 L. R. A. 710. A complaint has been held not open to the objection that it does not sufficiently show that plaintiff was on the top of a car at the time of receiving the injury from an overhead bridge, which alleged that while plaintiff was diligently engaged in his duty as brakeman on the train of the defendant company, his head was brought in collision with an overhead bridge: Pennsylvania R. Co. v. Sears, 136 Ind. 460; s. c. 34 N. E. Rep. 15; 48 Alb. L. J. 11. failure to aver that the engineer negligently failed to see the signals.102 A complaint alleging, as a proximate cause of the injury, the negligence of defendant in leaving a depression outside its tracks into which plaintiff fell while making a coupling, may set out the peculiar construction of the cars between which the brakeman's arm was caught and injured, although such construction was not the proximate cause of the injury.103 § 7544. Injuries in Mines.-Under statutes imposing the duty of furnishing props to support the roofs of mines, it is not necessary to state that the danger of the situation, by reason of insufficient props, was unknown to the plaintiff or that he did not assume the risk, since assumption of risk is an affirmative defense, the burden of pleading and establishing which is on the defendant.104 A complaint alleging ignorance of the defective conditions in the mine need not go further and allege facts showing affirmatively that the plaintiff had no means of ascertaining the defects causing the injury.105 Where the statute makes liability depend upon a willful failure to furnish the required supports, it is necessary that the complaint should specifically charge willfulness in this respect.108 Under the oft repeated doctrine which forbids a recovery for negligence not averred, proof that a mine was improperly laid out or constructed is inadmissible in an action for injuries alleged to have been sustained through defendant's negligence in permitting the accumulation of inflammable, combustible, and explosive coal dust in the mine and failing to remove or sprinkle it.107 § 7545. Injuries Caused by Caving In of Trench.-A cause of action for injuries resulting from the caving in of a trench was held sufficiently averred in a declaration which alleged that the character 102 Cambron v. Omaha &c. R. Co., 165 Mo. 543; s. c. 65 S. W. Rep. 745. 103 Missouri &c. R. Co. v. Kirkland, 11 Tex. Civ. App. 528; s. c. 32 S. W. Rep. 588. 104 Fisher v. Central Lead Co., 156 Mo. 479; s. c. 56 S. E. Rep. 1107; Adams v. Kansas &c. Coal Co., 85 Mo. App. 436; D. H. Davis Coal Co. v. Polland, 158 Ind. 607; s. c. 62 N. E. Rep. 492. 105 Parke County Coal Co. v. Barth, 5 Ind. App. 159; s. c. 81 N. E. Rep. 585. 100 Leslie v. Rich Hill Coal Mine Co., 110 Mo. 31; s. c. 19 S. W. Rep. 308. A complaint in an action by an employé for injuries sustained while mining coal, which alleged that "the defendant carelessly, negligently, and willfully suffered and permitted the roofing in said entrance to be and become unsafe and dangerous, and carelessly, negligently, and willfully failed to secure said roof bý properly propping the same with timbers," and by reason thereof a large quantity of rock fell upon him, is sufficiently specific to apprise the defendant of the act of negligence relied on, in the absence of a motion to make more. specific: Coal Bluff Min. Co. v. Watta, 6 Ind. App. 347; s. c. 33 N. E. Rep. 662. 107 Cherokee &c. Min. Co. v. Wilson, 47 Kan. 460; s. c. 23 Pac. Rep. 178. of the soil and the earth in which the ditch was dug was such as to require, for the safety of workmen employed therein, that the sides. should be properly shored and supported to prevent them from caving in, in consequence of the neglect of which duty plaintiff received the injuries complained of.108 §7546. Examples of Inconsistent Allegations.-A complaint alleging that while plaintiff was uncoupling cars some one unknown to him caused the cars to be moved suddenly, whereby he was thrown from the car and was injured, and that the cause of the cars being moved suddenly and without notice was the company's failure to make and publish rules or a system of signals to govern its employés, has been held not to state facts sufficient to constitute a cause of action, the allegations being inconsistent; since, if the plaintiff did not know who caused the cars to be moved, how could he know it was due to the failure to establish rules ?109 ARTICLE IV. PLEADINGS IN ACTIONS AGAINST MUNICIPAL CORPORATIONS. SECTION 7551. Corporate existence of defendant. 7552. Pleading consolidation of cities. 7553. Averment that work was done in execution of a corporate power. 7554. Averment that negligent act was permitted by city. 7555. Averment that the highway 7556. Further of averments as to 7559. Describing the defect which caused the injury. 7560. Objects in highway calculated to frighten horses. 108 Laporte v. Cook, 20 R. I. 261; s. c. 38 Atl. Rep. 700. |