of ignorance of the defect by the injured employé, a complaint was held sufficiently to aver lack of knowledge by a brakeman sustaining personal injuries on a freight train while jumping from one car to another which averred that he did not know of the defect in time to avoid the injury.52 It has been held that the complaint need not allege want of knowledge of the danger on the part of the employé where he has been ordered to do work out of the line of his employment, or away from the place of the work he was engaged to perform and has sustained injuries.53 In an action by a servant against his master for injuries sustained while operating a ripsaw, the complaint charged negligence, in that the top or surface of the table was worn and uneven, and the slot in which the saw revolved through the top of the table was by long use worn and widened; but it alleged that plaintiff was ignorant of any danger from such conditions. It was held that the complaint was not demurrable on the theory that it showed obvious defects; the allegation as to ignorance repelling actual and implied knowledge.5*

§ 7532. Failure to Safeguard Dangerous Machinery.-An averment that the machine causing the injury was unsafe and wholly unguarded and unprotected, in violation of a statute requiring dangerous machinery to be safeguarded, is sufficiently specific without showing in what manner the machine should be guarded and protected or the kind of guarding or the manner of placing it.55 It is not

ton &c. R. Co. v. Miller, 113 Ga. 15; s. c. 38 S. E. Rep. 338; Brazil Block Coal Co. v. Young, 117 Ind. 520; s. c. 20 N. E. Rep. 422; Dougherty v. Midland Steel Co., 23 Ind. App. 78; Indiana &c. R. Co. v. Dailey, 110 Ind. 75; Louisville &c. R. Co. v. Sandford, 117 Ind. 265; s. c. 19 N. E. Rep. 770; McFarlan Carriage Co. v. Potter, 153 Ind. 107; Ohio Valley Coffin Co. v. Goble, 28 Ind. App. 362; s. c. 62 N. E. Rep. 1025; Peterson v. New Pittsburg Coal &c. Co., 149 Ind. 260; s. c. 49 N. E. Rep. 8; 63 Am. St. Rep. 289; Louisville &c. R. Co. v. Richardson, 66 S. W. Rep. 631; s. c. 23 Ky. L. Rep. 2090 (no off. rep.); Chicago &c. Co. v. Norman, 49 Ohio St. 598; s. c. 32 N. E. Rep. 857; 29 Ohio L. J. 8; Consolidated St. R. Co. v. Maier, 9 Ohio C. C. 268; Whalan v. Whipple (R. I.), 13 Atl. Rep. 107; s. c. 5 N. Eng. Rep. 665; Brainard v. Van Dyke, 71 Vt. 359; s. c. 45 Atl. Rep. 758. The Indiana decisions antedating the statute making contributory negligence a

matter of defense did not require the averment of diligence in discovering the defect: Chicago &c. R. Co. v. Richards, 28 Ind. App. 46; s. c. 61 N. E. Rep. 18; Evansville &c. R. Co. v. Duel, 134 Ind. 156; s. c. 33 N. E. Rep. 355; Consolidated Stone Co. v. Williams, 26 Ind. App. 131; s. c. 57 N. E. Rep. 558; Gaar v. Wilson, 21 Ind. App. 91; s. c. 51 N. E. Rep. 502; 1 Repr. (Ind.) 144; Famous Man. Co. v. Harmon, 28 Ind. App. 117; s. c. 62 N. E. Rep. 306; Ohio &c. R. Co. v. Pearcy, 128 Ind. 197; s. c. 27 N. E. Rep. 479.

52 Louisville &c. R. Co. v. Hicks, 11 Ind. App. 588; s. c. 37 N. E. Rep. 43.

53 Clark County Cement Co. V. Wright, 16 Ind. App. 630; s. c. 45 N. E. Rep. 817.

54 Robinson v. Etter, 30 Ind. App. 253; s. c. 63 N. E. Rep. 767.

55 Buehner Chair Co. v. Feulner, 28 Ind. App. 479; s. c. 63 N. E. Rep. 239. See also, Reitman v. Bangert, 26 Ind. App. 468; s. c. 59 N. E. Rep.

is a defect of construction, the authorities do not require an allegation of the employer's knowledge of the defect.47

§ 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

of ignorance of the defect by the injured employé, a complaint was held sufficiently to aver lack of knowledge by a brakeman sustaining personal injuries on a freight train while jumping from one car to another which averred that he did not know of the defect in time to avoid the injury.52 It has been held that the complaint need not allege want of knowledge of the danger on the part of the employé where he has been ordered to do work out of the line of his employment, or away from the place of the work he was engaged to perform and has sustained injuries. In an action by a servant against his master for injuries sustained while operating a ripsaw, the complaint charged negligence, in that the top or surface of the table was worn and uneven, and the slot in which the saw revolved through the top of the table was by long use worn and widened; but it alleged that plaintiff was ignorant of any danger from such conditions. It was held that the complaint was not demurrable on the theory that it showed obvious defects; the allegation as to ignorance repelling actual and implied knowledge.54

§ 7532. Failure to Safeguard Dangerous Machinery.—An averment that the machine causing the injury was unsafe and wholly unguarded and unprotected, in violation of a statute requiring dangerous machinery to be safeguarded, is sufficiently specific without showing in what manner the machine should be guarded and protected or the kind of guarding or the manner of placing it.55 It is not

ton &c. R. Co. v. Miller, 113 Ga. 15; s. c. 38 S. E. Rep. 338; Brazil Block Coal Co. v. Young, 117 Ind. 520; s. c. 20 N. E. Rep. 422; Dougherty v. Midland Steel Co., 23 Ind. App. 78; Indiana &c. R. Co. v. Dailey, 110 Ind. 75; Louisville &c. R. Co. v. Sandford, 117 Ind. 265; s. c. 19 N. E. Rep. 770; McFarlan Carriage Co. v. Potter, 153 Ind. 107; Ohio Valley Coffin Co. v. Goble, 28 Ind. App. 362; s. c. 62 N. E. Rep. 1025; Peterson v. New Pittsburg Coal &c. Co., 149 Ind. 260; s. c. 49 N. E. Rep. 8; 63 Am. St. Rep. 289; Louisville &c. R. Co. v. Richardson, 66 S. W. Rep. 631; s. c. 23 Ky. L. Rep. 2090 (no off. rep.); Chicago &c. Co. v. Norman, 49 Ohio St. 598; s. c. 32 N. E. Rep. 857; 29 Ohio L. J. 8; Consolidated St. R. Co. v. Maier, 9 Ohio C. C. 268; Whalan v. Whipple (R. I.), 13 Atl. Rep. 107; s. c. 5 N. Eng. Rep. 665; Brainard v. Van Dyke, 71 Vt. 359; s. c. 45 Atl. Rep. 758. The Indiana decisions antedating the statute making contributory negligence a

matter of defense did not require the averment of diligence in discovering the defect: Chicago &c. R. Co. v. Richards, 28 Ind. App. 46; s. c. 61 N. E. Rep. 18; Evansville &c. R. Co. v. Duel, 134 Ind. 156; s. c. 33 N. E. Rep. 355; Consolidated Stone Co. v. Williams, 26 Ind. App. 131; s. c. 57 N. E. Rep. 558; Gaar v. Wilson, 21 Ind. App. 91; s. c. 51 N. E. Rep. 502; 1 Repr. (Ind.) 144; Famous Man. Co. v. Harmon, 28 Ind. App. 117; s. c. 62 N. E. Rep. 306; Ohio &c. R. Co. v. Pearcy, 128 Ind. 197; s. c. 27 N. E. Rep. 479.

52 Louisville &c. R. Co. v. Hicks, 11 Ind. App. 588; s. c. 37 N. E. Rep. 43.

necessary that the complaint in such an action should refer to the title of the act imposing this duty on the employer, or aver that defendant's negligence was in violation of the act, if it state the facts bringing the case within a statute.56 Negligence of this character is sufficiently charged by an allegation that plaintiff, while in the employ of defendant, received injuries through the failure of defendant to guard a dangerous piece of machinery,-as, for example, a set-screw, the existence of which was unknown to plaintiff, which cut and mangled plaintiff's arm while he was in the discharge of his duties. in its immediate vicinity.57 In an action for injuries alleged to have resulted from the bursting of an emery wheel in a foundry, an allegation that the wheel was without shield, guard, or hood to prevent the pieces from flying off in case it broke if revolving, has been held sufficient to admit evidence that there was in general use a device to protect and shield the wheel while in revolution.58

§ 7533. Failure to Warn Servant of Dangers.-The plaintiff should allege facts making it the duty of the master to warn him of the dangers of his employment, and where this is sufficiently done it is unnecessary to aver the existence of the duty and a negligent failure to discharge it.50 The pleader should also allege that the dangerous condition was unknown to the plaintiff, a mere averment that the employer failed to inform the employé of the dangerous condition not being sufficient.60 It should also appear that the failure to warn or instruct was the proximate cause of the injury. A complaint has been held sufficient on demurrer in an action for personal injuries resulting from driving a rusty spike with a defective maul, which alleged that plaintiff was inexperienced and not familiar with spiking, which defendant and his agents well knew and did not in

1080; Monteith v. Kokomo Wood Enameling Co., 159 Ind. 149; s. c. 64 N. E. Rep. 610.

56 Lore v. American Man. Co., 160 Mo. 608; s. c. 61 S. W. Rep. 678.

57 Rabe v. Consolidated Ice Co., 91 Fed. Rep. 457. So, a petition alleging that plaintiff was injured in the defendant's employ while undertaking to pass over a line shafting left in an exposed and dangerous condition when it should have been inclosed, by becoming entangled in the shaft and pulley attached thereto, and that it was negligence to construct a shaft without a covering, and that the danger was known to defendant, or might have been known by the exercise of reasonable

61

care, and that it was not known to plaintiff, sufficiently alleges negligence of defendant: Miller v. Itasca Cotton Oil Co. (Tex. Civ. App.), 41 S. W. Rep. 366 (no off. rep.).

5s Ide v. Fratcher, 96 Ill. App. 549; s. c. aff'd, 194 Ill. 552; 62 N. E. Rep. 814.

50 Postal Tel. Cable Co. v. Hulsey, 132 Ala. 444; s. c. 31 South. Rep. 527.

60 Becker v. Baumgartner, 5 Ind. App. 576; s. c. 32 N. E. Rep. 786.

01 Alabama Mineral R. Co. v. Marcus, 128 Ala. 355; s. c. 30 South. Rep. 679; Wahl v. Chatillon, 56 App. Div. (N. Y.) 554; s. c. 67 N. Y. Supp. 504.

form plaintiff of the hazard in using the defective tool, of which he was ignorant, so he could avoid the danger, and that he exercised great care and caution in its use.62 In another case an allegation in an action for injury to an employé working about machinery, that proper instructions were not given her by defendant as to the danger, was held sufficiently specific to allow evidence of insufficient instructions given her by the foreman as to the manner of doing the work, it being held that a fuller averment would amount to setting out the testimony.63

§ 7534. Youthful and Inexperienced Servants.-An allegation that plaintiff was about sixteen years old and had been for two months employed by defendant, is a sufficient allegation of youth and inexperience to justify the court in submitting that question to the jury.64 The length of time plaintiff was employed at the particular work before receiving his injuries should be stated. Thus, a mere averment that an employé had but little acquaintance with a mill and no experience previous to his employment with defendant, in the work he was engaged in when he was injured, is plainly insufficient to show lack of experience or knowledge of the danger of the employment. The pleader in addition should have set out the length of time plaintiff had been in the employment in which he sustained the injury.65 Evidence of the servant's inexperience, his need of instruction, that none was given, and the circumstances under which the accident happened, is admissible on the issue of contributory negligence and the master's duty to instruct, though not alleged in the declaration.66

§ 7535. Injury where Set to Work at a Different Employment. -A complaint proceeding on the theory that plaintiff was employed by defendant to perform a certain service unattended by danger, and that, while so employed, he was ordered by defendant to perform a different and perilous service, in which he was inexperienced, that he was ignorant of the peril and defendant negligently failed to warn him, and that the peril was not apparent to an inexperienced person, states a cause of action, since the rule that the servant asassumes risks incident to his employment does not apply to such case.67

62 Campbell v. Walker (Tex. Civ. App.), 22 S. W. Rep. 823 (no off. rep.).

Le Febvre v. Lawton Spinning Co., 24 R. I. 215; s. c. 52 Atl. Rep. 1025.

"International &c. R. Co. v. Hin

zie, 82 Tex. 623; s. c. 18 S. W. Rep. 681.

65 Becker v. Baumgartner, 5 Ind. App. 576; s. c. 32 N. E. Rep. 786.

66 La Flam v. Missisquoi Pulp Co., 74 Vt. 125; s. c. 52 Atl. Rep. 526. 67 Consolidated Stone Co. v. Red