
    Coal & Car Co. v. Norman.
    
      Negligence — Necessary averments by servant, in action against mas-terror damages for.
    
    In an action by a servant against his master for an injury resulting from the negligence of the latter in furnishing appliances, or in caring for the premises where the work is to be done, the plaintiff must aver want of knowledge on his part of the defects causing the injury; or that, having such knowledge, he informed the master, and continued in his employment upon a promise, express or implied, to remedy the defects; an averment that the injury occured without fault on his part is not sufficient.
    (Decided Nov. 1, 1892.)
    Error to the Circuit Court of Athens county.
    The plaintiff below, as administratrix of Henry Norman, deceased, brought suit against the defendant, The Chicago and Ohio Coal and Car Company, to recover damages for negligently causing the death of the deceased, while in its employment as a servant on the 8tb day of March, 1890. A demurrer to the petition having been overruled, the cause was tried to a jury upon issues of fact made by the answer of the defendant. The trial resulted -in a verdict for the plaintiff, on which judgment was entered in her favor, aftei the overruling of a motion of the defendant for a new trial. The judgment was affirmed on error in the circuit court. The object of this proceeding is to reverse the judgment of both the lower courts, on the ground that there was error in overruling the demurrer to the petition. The petition, omitting the style, reads as follows:
    
      " The plaintiff states that on the 22nd day of January, 1891, letters of administration on the estate of Henry Norman theretofore deceased, intestate, were, by the probate court of Athens county, Ohio, duly issued to the plaintiff, who thereupon duly qualified, and entered upon the duties of the same office, and that she is now acting in that capacity; that said defendant, The Chicago and Ohio Coal and Car Company, is a corporation duly created and organized under and by virtue of the laws of the state of Illinois and doing business in York township, in said Athens county, and that prior to and on the 8th day of March, 1890, said defendant was the owner of and operating a eoal mine at or near Glen Ebon', in said township. In operating said mine defendant maintained a main line railroad track for bank cars on an incline or slope from its coal hopper situated about 150 feet from the mouth or opening of the main entry of said mine on the outside thereof, to the interior of said mine, over which track, by means of bank cars, the coal from said main entry to said hopper, and said cars were drawn from within said main entry of said mine, up said incline on said track to said hopper by means of a rope attached to said cars and wound upon a drum or cylinder at said hopper by steam power controlled by an engineer. At or near the mouth or opening of said main entry of said mine, defendant maintained a railroad switch which connected said main line trackiwith a railroad side track for the use of its said cars, which extended from said switch into the main entry of said mine.
    
      “Said bank cars, when emptied of coal at said hopper,, were returned by their own gravity down said incline on said main line, across said switch onto said side track within said entry. Said entry, in which said side track was maintained, and from which the said coal had been mined and removed, was of unusual width between its natural supports on either side thereof along, said side track within said mine, but what the width of said entry was plaintiff cannot state with more certainty for want of information, and the roof of said entry, which consisted of slate, stone and other mineral substances, in consequence of said unusual width, was rendered unusually dangerous and liable to fall, and thereby kill or injure persons who were required to enter said entry and pass along the line of said side track within said mine in the discharge of their duties as servants of said defendant, in and about operating said mine, unless said roof' was supported by pillars and caps sufficient in number and securely and skillfully placed, or other safe mechanical appliances so as to furnish proper support to the same. Said roof in said entry along the line of said side track was also-unusually faulty and defective in not being firm, solid and strong, and the material composing the same not adhering well together, and for that reason was extraordinarily dangerous and liable to fall and kill or injure such persons, unless the same was supported in the manner and by the means above stated. Said empty bank cars in descending from said hopper into said entry at said switch, and along said side track frequently did and were always liable to leave or jump the track, and when off the track were liable tO' strike, jar or knock down any pillars or supports unskillfully and negligently placed and secured in said entry along or-near the line of said side track to support said roof, and thereby cause said roof or some part thereof to fall. All of the foregoing facts were well known to the defendant long prior to and on said 8th day of March, 1890, yet on said date, said roof in said entry, along said side track, was so carelessly, negligently and unskillfully supported by defendant by using posts or pillars too few in number for the safe support of said roof, and thereby rendered the same unusually dangerous, and liable to fall. And said defendant had prior to said date, so negligently, carelessly and unskillfully and improperly placed and secured said posts or pillars along and near said side track, and. so maintained them to said date that said empty cars, if they left or jumped the track, at said switch, or along said side track, were liable to strike, jar and knock down said pillars, and thereby cause said roof or some part thereof to fall. On said 8th day of March, 1890, said Henry Norman was employed by the defendant as a servant at said mine in the capacity of “rope rider,” and among other things it was his duty, in said employment, to descend from said hopper on said empty cars down said main line over said switch on to said side track, under said roof within said mine and to notify said defendant, if said cars left or jumped the track or if any substance intervened to prevent or interfere with said cars being hauled backward or forward over said main line or switch in the manner and by the means above stated. While thus engaged in the discharge of his said duties on said last named date, while in said entry, and without fault on his part, a part of said roof fell upon the said Henry Norman, and he was thereby killed.
    “The plaintiff says, said roof'fell upon said Norman either by reason of said careless, negligent and unskillful manner in supporting the same by the defendant, by pillars or posts too few in number, and improperly and unskillfully placed, or by said empty cars leaving or jumping the track at said switch or along said side track and striking said posts so carelessly, negligently, unskillfully and improperly placed and secured, as before stated, or from both of said causes combined, but for want of information plaintiff cannot state with more certainty which one of said causes or whether both combined in causing said roof to fall.
    “Said Henry Norman left Adelia Norman his widow, and Blanche Norman aged 9, Jessie Norman aged 8, James Norman,aged 6, and Minnie Norman aged 1, his children surviving him, who were dependent on him for support, who have been damaged by his 'wrongful death, caused by the carelessness and negligence of the defendant as above set forth, in the sum of $10,000 00, for which sum plaintiff asks a judgment against said defendant.
    “ ChARRES ToWNSRND,
    Wood & Wood,
    
      Attorneys for plaintiff.”
    
    
      L. M. Jewett, and Monk & Elliott, for plaintiff in error.
    I, Ignorance of danger on part of deceased, is an essential element of the cause of action which must be averred in petition, or facts stated which show an excuse for remaining in the service with knowledge of the risk. Hayden v, Sniithfield Manufacturing Co., 29 Conn., 548; Buzzel v. Laconia Ma7iufacturing Co„ 48 Me., 121; Gilbei'tv. Guild, 144 Mass., 601; Beach on Contributory Negligence, 350, 369; Wood on Master and Servant, §414; Thompson on Negligence, page 1050, sec. 47.
    II. The averment that the deceased was without fault, is not equivalent to an averment of want of knowledge on •his part, or of facts creating an exception to the general rule exempting a master from liability. Bevans on Negligence, secs. 336 and 337; Beach on Contributory Negligence, sec. 17; see also page 370; Bogenschultz v. Smith, 84 Ky., 330; Railroad Company v. Sanford, 117 Ind., 265 Brazil Block Coal Co. v. Young, 117 Ind., 520; Railroad Company v. Corps, 124 Ind., 427; Hayden v. Sndthñeld Manufacturing Co., 29 Conn., 548; Railroad Co. v. Doyle, 49 Tex., 190; Nason v. West, 79 Me., 253; Allen v. The Augtista Factory,82 Ga., 76; Norfolk & Western R. R. Co. v. Jackson, 85 Va., 489; Reardon v. Consolidated Coal Co., 5 Monthly E. Bui., 92; Abbott’s N. Y. Digest, vol. 10, title “Pleading,” sec. 937; 51 N. Y. Superior Court Rep., 134; Stephenson v. Duncombe, 73 Wis., 404; Williams v. Clough, 3 Hurls. & Nor. 258; Ch'ijfiths v. London and St. Catherine's Docks Company, E. R. 13 Q. B. D. 259; McGatrick v. Wason, 4 Ohio St., 566; R. R. Co. v. Barber, 5 Ohio St., 541; Street Railroad Company v. Nelthenius, 40 Ohio St., 376; Railroad Co. v. Shannon, 4 O. Circuit Court Rep.; 449; Manufacturing Co. v. Morrisey, 40 Ohio St., 148; 1 Bates’ Pleading- and Practice, 562; 2 Yaple, page 1177.
    
      III. The facts alleged raise ah implication of knowledge ■on the part of Norman, and hence the petition is fatally .defective in not showing an excuse for remaining in the .service after such knowledge was acquired.
    
      Wood & Wood and Chas. Townsend, for defendant in error.
    The several general propositions of law advanced by the plaintiff are not seriously controverted, and do not cast much light on the question involved, which comprehends a single proposition, with which, alone, this cause is concerned. It is, is the allegations contained in the original petition, under all the facts therein alleged, sufficient, which declares the plaintiff “was without fault on his part.” It will be seen by this petition that the fact, necessarily averred in the original petition, suggests the implication of negligence on the part- of the plaintiff. Street Railroad Co. v. Neltherdus, 40 Ohio St,, 376.
    The defendant below was charged with knowingly keeping the mine where the decedent, as' an employee, labored and lost his life, in an unusually dangerous and unsafe condition; and that in consequence thereof, the decedent was killed. In such an instance, to enable the plaintiff below to recover, she must show the decedent was not negligent. This could be done by showing that he was killed in ignorance of such dangerous condition; or knowing of the danger he continued to labor under a promise of the defendant below, to make the appliances safe in a reasonable time. Manufacturing Co. v,'Morrisey, 40 Ohio St., 148; Hough v. Railroad Co., 100 U-S. 218,
    The one question before us is: Is the averment contained in the original petition, alleging that the decedent was killed by the alleged negligence of the defendant below, without fault on the part' of the decedent, a sufficient allegation?
    The claim of the plaintiff, that knowledge, actual or constructive, on the part of the master, and ignorance on the part of the servant, must concur in order to fix the liability, is not the whole of the law, relating to the rights of the servant. The rights of the servant are. further qualified, as shown in the case last above cited, and bjl numerous cases cited in the record of the cases last aforesaid, to be enlarged by the promise of the principal to make safe the appliances.
    It is unquestioned that, in Ohio, where the plaintiff, in his petition, does not raise an implication of negligence on his part, the presumption of law is, he was not negligent.
    The burden of proving contributory negligence in such an instance, is on the defendant, while in Indiana, the burden, on the question of contributory negligence, is on the plaintiff. This rule may have influenced the Indiana court to a more burdensome and exacting rule of pleading, on the part of the plaintiff, in a case where the circumstances, in the case, suggest negligence on the part of the plaintiff, or one standing in his place. Several Indiana cases seem to sustain the claim advanced by the plaintiff in error. Railroad Company v. Sandford, 117 Ind., 265; Brazil Block Coal Co, v. Young, 117 Ind., 520; Railroad Company v. Corps, 124 Ind., 427,
    It seems that the Indiana court stands almost, or quite, alone, in the matter in question, although in Georgia there is some indication of a similar holding, Allen v, The Augusta Factory, 82 Ga., 76.
    In this case the court says nothing about the rule recognized in Ohio and elsewhere, as to the effect of a promise of the defendant to make safe running machinery. Street Railroad Co. v. Nelthenius, 40 Ohio St., 876.
    Few if any of the other cases mentioned by the plaintiff in error, cast any certain light on the issue,
    It has always been the practice, in Ohio, in the petition, to negative the inference of contributory negligence on the part of the plaintiff, by alleging “he was without fault on his part,” etc. 1 vol. Nash Pleading and Practice, 4 Ed. p. 478, 579, 501; Crater v. Metropolitan R. R. Co., U. R., 1 C. B, 300; Longmore v. G. IV. R. R. Co. 19 C. B. N. S. 183; Tony v. The Brighton R. R. Co., 3 C. B. N. S., 146; Swan’s Pleadings, under the code, 131; Yaple’s Code Practice and Pleadings, vol.. II, p, 1178; C. C. C. and I. R. .R Co. v. Felleat,^ Ohio St., 340; Street R, R. Co. v. Shiers, 18 Ohio-St., 255; The Mad River and Lake Erie R. R. Co. v. Barber, 5 Oliio St., 541.
   MiNSHarr, J.

From the averments of the petition it appears that a recovery is soúght on the ground that the death of Henry Norman was caused by the 'negligent manner in which the defendant maintained the roof of that portion of the mine in which he was employed at the time the roof fell; and, while it is averred that the accident occurred without fault on his part,- it is not averred that at that time and prior thereto, he was without knowledge of the condition of the roof, and that it was dangerous to continue in the employment of the company under it; or that, having such knowledge, he informed the company, and continued in its employment on its promise to remedy the defects. „

The rules which determine the liability of a master to his servant, injured in his employment, may be regarded as well settled. In the absence of a contract, the master is not, in any case, the insurer of the safety of his servant. It is, however, his duty to furnish the servant with reasonably safe appliances, and to protect him from such dangers in the performance of his work, as in the exercise of ordinary care and prudence, .can . be provided against. It necessarily results from this, and so the law is, that the servant, by the terms of his employment, is presumed to assume the risk of such injuries from accident as are incident to the nature and character of the employment, and against which the master could not, in the exercise of ordinary care, have protected him. And, as a further limitation upon the liability of the master for injuries received by the servant in the course of his employment, it is equally well settled, that no recovery can be had against'the master, where the cause of the injury, of whatever nature, was unknown to the master and could not have been known in the exercise of ordinary care. And,, furthermore, no recovery can be had where the source of danger is known to the servant, and he, without communicating his knowledge to the master, continues in his service; in such case he is presumed voluntarily-to assume the risk, and is without remedy, according- to the maxim volenti non fit injiiria; unless it is made to appear that be informed the master of the facts and continued in his service on the faith of a promise that he would remove the danger by remedying the defects. Whilst recent decisions have given a more liberal construction than formerly prevailed to the rights of a servant, remaining in the employment of the master after he has knowledge that there are defects in the appliances furnished, or in the conditions that surround him, making it hazardous to do so, they have not, as we believe, gone beyond the above statement of the law on the subject. Manufacturing Company v. Morrissy, 40 Ohio St., 148; Sherman & Redfield on Negligence, § 208 and notes.

We come then to the question, whether in view of the law of the case the petition states a cause of action against the company. The objection made on the demurrer is, that, whilst it is averred that the falling of the roof and the injury to the decedent, occurred without fault on his part, it is not averred that he was without knowledge of the unsafe condition of the roof at and prior to the accident; or that, having such knowledge, he informed the company and con-, tinued in its employment on its promise to remove the danger. On the other hand it is argued, that the averment that the roof, of the mine fell and caused the death of Henry Norman “without fault on his part” includes by implication ■that the character of the roof and the insufficiency of its supports, were unknown to the deceased.

After a careful consideration of the question we are of the opinion that, both upon principle and authority, the demurrer should have been sustained. The deceased may at the time have been without any fault contributing to his injury — may have been extremely careful — and yet fully aware of the danger to which he was exposed from the insecurity of the roof of the mine; and a failure to communicate such fact to the employer is' not a mere matter of defense that should be pleaded, but a defect in the ground on which his liability is asserted; that is to say, actionable negligence. Hence, to have constituted a cause of action, the petition should have averred, either that the deceased was without knowledge as to .the dangerous character of the roof of the mine, or that, having such knowledge, he had informed the company, and continued in its employment on its promise,, express or implied, to remedy the defect; and the averment that the accident occurred without fault of the deceased is not the equivalent of such averment. Beach, Contributory Negligence, § 16. In Wood on the law of Master and Servant, § 414, it is said: “The. servant, in order to recover for defects in the appliances ot the business, is called on to establish three propositions: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had, 3. That the servant did not know of - the defect, and had not equal means of knowing with the master;” and it is elementary in the law of pleading that, whatever a party is required to prove in order to make out his claim must be averred.

The precise point presented in this case, as to the sufficiency of a petition in an action by a servant against his master for an injury caused by negligence, has not heretofore been determined by this court. But in other states, where it has arisen, it has generally been held, that want of knowledge of the efficient cause of the injury, or facts excusing such knowledge, must be averred in the complaint. The cases are cited in the brief of the plaintiff in error. All the approved precedents contain such an averment. 1. Bates’ Pleadings and Practice, 562, 2. Yaple, Code Practice and Precedents, 1177; Maxwell, Code Pleading, 241, 244.

Judgment reversed and cause remanded for fiirther proceedings.  