tiff will be confined in his proof to such defects;30 but he will not be compelled to elect between distinct and separate specifications of defects if they are not inconsistent with nor repetitions of each other.31 Applying the familiar principle of conformity of allegata and probata, there can be no recovery under a complaint for injuries from a piece of hammer breaking off and hitting plaintiff which charges negligence generally, and then specifies negligence in furnishing a hammer that was old and cracked, where the evidence shows that the hammer was new and not cracked but too highly tempered.32

§ 7529. Master's Knowledge of the Existence of the Defect. The plaintiff must allege in his declaration or complaint that the employer had notice or knowledge of the efficient cause of the injury as just described, or ought, by the exercise of reasonable diligence, to have known it; and that the servant did not have such knowledge, and was

36

not ignorant of it in consequence of a want of ordinary care on his part.3 34 An averment of want of contributory negligence is insufficient to supply the omission of this allegation.35 Such knowledge by the defendant is generally regarded as sufficiently averred by an allegation that the defendant negligently permitted appliances to become defective and negligently suffered them to remain in a defective condition. In a case where the allegation was, that, on account of defective fences and cattle-guards, which it was the duty of the defendants to maintain, a horse got upon the defendants' railroad, and, on account of a defective cow-catcher on a locomotive upon which the plaintiff's intestate then was, as engineer, in the defendant's employ, the locomotive was thrown from the track, and thereby killed the deceased, it was held that the complaint was defective in that it did not allege knowledge, on the part of the defendants, of such defective fences, cattle-guards, and cow-catcher.37 Again, where the plaintiff alleged that the defendants, in whose employment she was, were owners of a mill, and a bridge erected by them and connected therewith, over which she was obliged daily to pass and repass in going to and returning from her labor in their service; that, through their negligence, it had become out of repair, unsafe, and dangerous; that the defendants represented it to be safe and free from danger; that, rely

Polobinski, 94 Ill. App. 640; s. c. aff'd, 192 Ill. 113; 61 N. E. Rep. 451. But see contra, Chicago &c. R. Co. v. Kellogg, 54 Neb. 127; s. c. 74 N. W. Rep. 454; s. c. aff'd, 55 Neb. 754; 76 N. W. Rep. 462; Branch v. Port Royal &c. R. Co., 35 S. C. 405; S. c. 14 S. E. Rep. 808.

Buzzell v. Laconia Man. Co., 48 Me. 113; Mad River &c. R. Co. v. Barber, 5 Ohio St. 541.

25

New Kentucky Coal Co. v. Albani, 12 Ind. App. 497; s. c. 40 N. E. Rep. 702.

Illinois Steel Co. v. Ostrowski, 93 Ill. App. 57; s. c. aff'd, 194 Ill. 376; 62 N. E. Rep. 822; Chicago &c. R. Co. v. Kellogg, 55 Neb. 748; s. c. 76 N. W. Rep. 462; 5 Am. Neg. Rep. 50; modifying s. c. 54 Neb. 127; 74 N. W. Rep. 454. See also, Louisville &c. R. Co. v. Utz, 133 Ind. 265; s. c. 32 N. E. Rep. 881; Crane v. Missouri &c. R. Co., 87 Mo. 588. An allegation that a railroad company negligently and carelessly used a brake on one of its cars, in a worn, battered, and unsafe condition, on the day of the injury and for many days prior thereto, sufficiently avers knowledge on its part of the con

dition of the brake: Ohio &c. R. Co. v. Pearcy, 128 Ind. 197; s. c. 27 N. E. Rep. 479. A complaint by a yardmaster against a railway company for personal injuries is sufficiently specific as to the alleged defective condition of an engine, where it alleges that the throttle of the engine leaked, and that there were other defects known to the company which plaintiff is unable to specify, and which have been long known to the company: Wabash &c. R. Co. v. Morgan, 132 Ind. 430; s. c. 31 N. E. Rep. 661. A petition alleging that personal injuries were caused by a railroad company's negligence in using a defective car, sufficiently alleges that the defect was known by the company, or could have been known by the use of reasonable diligence: O'Conner v. Illinois &c. R. Co., 83 Iowa 105; s. c. 48 N. W. Rep. 1002.

37 Columbus &c. R. Co. v. Arnold, 31 Ind. 174; McMillan v. Saratoga &c. R. Co., 20 Barb. (N. Y.) 449. See also, Anderson v. New Jersey Steamboat Co., 7 Robt. (N. Y.) 611; Potts v. Plunkett (Ir. Q. B.), 7 Am. L. Reg. 555.

ing on their representations, she passed over the bridge, and, in so passing, was dangerously injured, and suffered great bodily pain, without fault on her part, and in consequence of the defective and dangerous condition of the bridge, arising from the defendant's neglect and want of ordinary care,—it was held, on demurrer, that the declaration was bad; that it should have alleged that the insufficiency of the bridge in question was unknown to the plaintiff, and that it was known to the defendants, or, that but for the want of all proper care and diligence it would have been known to them.38 But this last conclusion is not of universal application. Although, as we have seen, where the gravamen of the action is negligence in the master in exposing his servant to risk of injury from defective machinery, it must appear that the servant was excusably ignorant of the defect;39 yet it does not necessarily follow that a declaration will be bad which does not allege that the servant was thus ignorant, although it is better that such an allegation should be made. This is perfectly obvious when it is considered that there are many cases where mere knowledge on the part of the servant does not operate to bar his right of action.40 Moreover, it is not necessary, in pleading, to negative every possible state of circumstances which may be an answer to the action. It will be sufficient if it can be collected from the pleading that the injury was caused by the defendant's fault, and that the plaintiff did not know the risk he was running. Under the modern form of pleading obtaining in England, it was held that an averment, in such a declaration, that the injury was "by reason of the negligence and default of the defendants," must be taken as equivalent to an averment in the old form that it was by their mere negligence and default. Such a pleading was hence certain to a common intent.42 In another case, the declaration stated that the defendant was possessed of a ladder unsafe and unfit for use by any person carrying corn up the same, and the plaintiff was the defendant's servant; yet the defendant, well knowing the premises, wrongfully and deceitfully ordered the plaintiff to carry corn up the ladder; and the plaintiff, in obedience to the order, and believing the ladder to be proper for the purpose, and not knowing the contrary, did therefore carry corn up it for the defendant, but by reason of its being unsafe and unfit, the plaintiff fell from it and was injured. On demurrer, it was argued that it was consistent with the averments of the declaration

38 Buzzell v. Laconia Man. Co., 48 Me. 113.

3 See Vol. IV, § 3801.

See Vol. V, § 5339.

1 A. D. 1871.

41

42 Watling v. Oastler, L. R. 6 Exch. 73; s. c. 23 L. T. (N. S.) 815; 19 Week. Rep. 388; 40 L. J. (Exch.) 43.

that the plaintiff had notice that the ladder was unsafe, but that he believed the contrary; that the declaration was consistent with the fact that the defendant told the plaintiff the ladder was unsafe, and that the plaintiff preferred to be guided by his own opinion. It was held that the declaration was sufficient. So, where the petition alleged that the plaintiff, who was a servant of the defendants, was ordered by them to assist three other men in rolling a large iron wheel from one place to another in their foundry; that there was a concealed hole in the floor of said foundry, along the line where said wheel was ordered to be rolled, the existence of which was unknown to the plaintiff, but was known, or should have been known, to the defendants; and, in the execution of the said order, the said wheel was necessarily rolled over said hole, and fell into the same and against and upon the plaintiff, breaking his leg and inflicting upon him other injuries, it was held, on demurrer, that if the existence of the defect in the floor was really unknown, but should have been known, the fact that the servant had equal means of knowledge with the master was a matter of defense, and need not be negatived in the petition." But it would seem that where, from the nature of the service in which. the employé was engaged, he would be presumed to have had an equal opportunity with the employer of discovering defective appliances, he must allege in his declaration, not only that he had no knowledge of the defects in the appliances by which the injuries were caused, but that he had used due diligence in examining the appliances. Thus, where an action was brought by a conductor of a train of freight-cars against his employers, a railroad company, for injuries caused by defective brake-rods, etc., on the said train, it was held that it was essential for him to aver, in addition to the allegation that he had no knowledge of the insufficiency or defects which were the alleged cause of the injury, that he had exercised due care and diligence in the use, and also in the examination and inspection, of the cars and machinery belonging to the train, while the same was under his charge and direction. Under the strict rule in Rhode Island, an allegation in an action against a gas company for personal injuries occasioned by the explosion of a tank, that the defendant knew, or was bound to know, of the existence of the defect, was held insufficient in not stating in what manner or how it was bound to know of the defect. Where it appears from the complaint that the defect

45

Williams v. Clough, 3 Hurl. & N. 258; s. c. 27 L. J. (Exch.) 325. "Cummings v. Collins, 61 Mo. 520. To the same effect is Indianapolis &c. R. Co. v. Klein, 11 Ind. 38.

45 Mad River &c. R. Co. v. Barber, 5 Ohio St. 541.

46 Cox v. Providence Gas Co., 17 R. I. 199; s. c. 21 Atl. Rep. 344.

is a defect of construction, the authorities do not require an allegation of the employer's knowledge of the defect."

§ 7530. Ignorance of Master Due to Failure to Inspect.-No specific allegation of a failure to inspect machinery is necessary to bring the question of imputed knowledge of the defects by the master into the case. In a case where neglect in this respect was charged, a complaint was upheld as sufficient, which alleged that after a portion of a railroad bridge had been washed away, the company negligently failed properly to examine or inspect the bridge, though it knew of the washout or might have known of it by a proper examination or inspection.**

§ 7531. Servant's Want of Knowledge of Defect.-The confusion of decisions in the law of negligence brought about by the adoption of local codes adverted to at the outset of this chapter is illustrated in the cases passing upon the question of notice of the defect in machinery or appliances causing personal injuries. The greater weight of authority supports the doctrine that an employé, suing for injuries received, through alleged negligence of his employer, need not aver that he had no knowledge of the defective character of the machinery by which he was injured. In these courts knowledge of the alleged defects is regarded as a matter of defense.50 In States where plaintiff is required to negative contributory negligence the courts, with entire consistency, require the plaintiff to allege not only that he was ignorant of the defect but also that he could not have discovered it by ordinary diligence.51 In one jurisdiction requiring an averment

47 Chicago &c. R. Co. v. Hines, 33 Ill. App. 271; Salem Stone &c. Co. v. Griffin, 139 Ind. 141; s. c. 38 N. E. Rep. 411; Louisville &c. R. Co. v. Berkey, 136 Ind. 181; s. c. 35 N. E. Rep. 3; Keitel v. St. Louis Cable &c. R. Co., 28 Mo. App. 657.

48 Salem Stone &c. Co. v. Tepps, 10 Ind. App. 516; s. c. 38 N. E. Rep. 229.

49 St. Louis &c. R. Co. v. George, 85 Tex. 150; s. c. 19 S. W. Rep. 1036.

50 See ante, § 7463; Broslin v. Kansas City &c. R. Co., 114 Ala. 398; s. c. 21 South. Rep. 475; 9 Am. & Eng. R. Cas. (N. S.) 99; Magee v. Northern &c. R. Co., 78 Cal. 430; s. c. 21 Pac. Rep. 114; Denver &c. R. Co. v. Smock, 23 Colo: 456; s. c. 48 Pac. Rep. 681; Hines v. Georgetown Gas Co., 3 App. (D. C.) 369; s. c. 22 Wash. L. Rep. 365; Chicago &c. R. Co. v. Hines, 33 Ill. App. 271;

Chesapeake &c. R. Co. v. Venable, 111 Ky. 41; s. c. 23 Ky. L. Rep. 427; 63 S. W. Rep. 35; Duerst v. St. Louis Stamping Co., 163 Mo. 607; s. c. 63 S. W. Rep. 827; Devore v. St. Louis &c. R. Co., 86 Mo. App. 429; Young v. Shickle &c. Co., 103 Mo. 324; s. c. 15 S. W. Rep. 771; Hall v. St. Joseph Water Co., 48 Mo. App. 356; Union Stockyards Co. v. Conoyer, 38 Neb. 488; s. c. 56 N. W. Rep. 1081; s. c. aff'd, 41 Neb. 617; 59 N. W. Rep. 950; Toomey v. Avery Stamping Co., 11 Ohio C. D. 216; s. c. 20 Ohio C. C. 183; Hough v. Grants Pass Power Co., 41 Or. 531; s. c. 69 Pac. Rep. 655; Johnston v. Oregon &c. R. Co., 23 Or. 94; s. c. 31 Pac. Rep. 283; Cole v. Chicago &c. R. Co., 67 Wis. 272; Lake v. Drury, 32 N. B. 82.

51 Corley v. Coleman, 113 Ga. 994; S. c. 39 S. E. Rep. 558; Charles