
    No. 19,631.
    J. M. Hockenberry, Appellant, v. The Capital Iron Works, Appellee.
    
    SYLLABUS BY THE COURT.
    Personal Injuries — Petition Fails to State Cause of Action. An allegation -that the defendant sent a load of iron by one of its employees to be delivered, knowing- that it would require more help to unload it, that the driver called upon the plaintiff to assist, and in so doing the plaintiff was injured by a piece of iron falling upon his hand, fails to state any actionable negligence on the part of the defendant.
    Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.
    Opinion filed November 6, 1915.
    Affirmed.
    
      W. I. Jamison, and W. Herbert Jamison, both of Topeka, for the appellant.
    
      T. F. Garver, and R. D. Garver, both of Topeka, for the appellee.
   The opinion of the court was delivered by

West, J.:

Plaintiff appeals from an order sustaining a demurrer to his petition and insists that it stated a cause of action.

The pleading alleged in substance that the defendant sent out a load of iron by one of its employees, knowing that it would require outside assistance to unload it, and that upon arriving at the place of delivery the driver called upon the plaintiff to assist him, which he did, and that while engaged in the unloading he was painfully injured, one of the pieces of iron falling upon his hand and mashing it. The negligence complained of was in sending an employee with no means of unloading the material, making it necessary for the driver to call the plaintiff to assist him.

It may be conceded, as argued by the plaintiff, that upon answering the call of the driver to assist in unloading the relation of employee began and that the plaintiff was not to be considered a mere volunteer. But there is no allegation of any act of negligence on the part of the defendant causing the injury. It seems to be the theory of the plaintiff, as indicated by his brief, that the defendant was negligent in not employing a sufficient number of men to do the unloading in a safe manner, but there is no averment that the number of men, including the plaintiff, was insufficient, and hence there was no foundation on which the trial court could have instructed the jury respecting any negligence which would justify a recovery.

The ruling of the trial court is affirmed.  