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The Salem Stone and Lime Company v. Griffin.

place in which he works, and who is injured by reason of a danger not so discoverable, is free from fault, is not objectionable, if the conditions necessary to a recovery are fully given in other instructions.

SAME.-What Risks are Assumed and What Not.-Notice to Employe of Danger.-Implied assumptions of risks are only such as are naturally incident to the service, and those which are known, or discoverable by ordinary care, but disregarded by the servant. Dangers which are unknown to the servant, or not discoverable by ordinary care, but which are, or should be, by ordinary care, known to the master, are not assumed, and as to such the master is bound to give notice.

SAME.-Time of Giving Notice.—Notice of an unassumed danger must be given before the service involving it is required, and it is not necessary that it should be given at the time of the contract of employment; but where no notice was given at any time, an instruction fixing it at the time of employment is harmless. SAME.-Walk.-Use of.-Ignorance of Danger.-Contributory Negligence. ---A walk constructed along a tramway is an invitation to its use, and a servant going upon it in the performance of a duty, without knowledge of dangerous projections from the tramway cars which make it unsafe, is not guilty of contributory negligence. INSTRUCTIONS TO JURY.-Burden of Proof.-An instruction that the plaintiff "in a civil case, where he has established his complaint, that is, the vital, material facts set out in the complaint, should recover," is not harmful if, considered in connection with other instructions, the case is properly given to the jury.

From the Jackson Circuit Court.

M. Z. Stannard, for appellant.

J. A. Zaring and M. B. Hottel, for appellee.

HACKNEY, C. J.-The complaint by the appellee charged that the appellant was engaged in quarrying, sawing, and dressing stone, and in making lime, in which business it occupied a mill and operated a tramway for handling and shifting stone, which tramway was elevated to the height of the roof of said mill and its track ran near said roof. From said roof projected a dormer window two feet wide by three feet high, constructed by the appellant for, and used by employes as, a passage way from said mill and the ground below said tramway, that

The Salem Stone and Lime Company v. Griffin.

being the best way provided for reaching said track. The distance between said track and said dormer window was about twenty-six inches, and in the operation of the carriages, or "travelers," upon said track, the timbers, rods and chains were negligently permitted to project beyond the track from sixteen to eighteen inches, and to within four to eight inches of said dormer window. The appel-. lee was in the service of the appellant from some time in March, 1891, until the 18th day of August, 1891, his principal service being in the yards wheeling spawls and chips from the planer, and on said last named day he was required to perform the service of a "hooker" in attaching and detaching the hooks of one of the carriages while removing stone. In this service it became

his duty to assist in replacing upon the track one of the wheels of such carriage which had become derailed, and while upon the tramway for that purpose he was sent to procure a wrench from within the mill. He proceeded over the tramway and passed down into the mill through said dormer window and returned through said window when, just as he had gotten upon said tramway, he was caught between said dormer window and the projecting timbers, rods and chains of another of the carriages operated upon said tramway, and sustained the injuries complained of.

The alleged negligence of the appellant was in constructing said dormer window so close to said track and in permitting said projections so as to be dangerous to employes, and so as to require one passing through said dormer window to stoop in such manner that he could. not see, without special care to stop and make observation, before going upon the tramway, to learn if a carriage was approaching; that appellant had negligently directed said service, which was more hazardous than that he had before performed, without notice or warning

The Salem Stone and Lime Company v. Griffin.

to him of the dangers thereof, though appellant knew said dangers and appellee's ignorance thereof.

Besides the general allegation of noncontributory negligence as to the appellee, it is alleged that he had no knowledge of the close proximity of said carriage projections when moving to said dormer window; that his service had never made it necessary for him to observe the construction or operation of said carriage or its nearness to said dormer window; that he had never passed through said window until he was sent for said wrench, and he was wholly unacquainted with the construction and operation of like machinery; that he did not see the approaching carriage, and could not have seen it without stopping and making special observation before passing from the window, and that he could not hear the approaching carriage because of the noise of the workmen. and machinery in the mill.

The first question for consideration is the sufficiency of the complaint, and the appellant insists that facts are specifically pleaded which charge the appellee with knowledge of the alleged dangers and with contributory negligence, overthrowing the general allegation of noncontributory negligence.

It is first assumed that in the line of his duties in wheeling spawls and chips in the yard of the appellant, the appellee acquired a general knowledge of the construction of the mill, dormer windows, tramway and carriages in their relations one to another. For aught that appears from the complaint, the appellee's service was not within sight of the tramway and dormer window, and the general allegation that he possessed no knowledge upon this subject, must prevail, unless it may be said that this knowledge was acquired on the day of the injury, for it will be remembered that it was not until that day that he served as "hooker," and we can not say, in

The Salem Stone and Lime Company v. Griffin.

the presence of the general allegation, that he could see, from his location as "hooker," that the track was but 26 inches from the dormer window, and that the timbers, rods and chains of the carriage occupied nearly all of that space. But, it is said, that he was upon the tramway assisting in replacing the carriage wheel upon the track, and that he then learned that the carriage timbers, rods and chains projected, and that when he went over the tramway and down through the dormer he did, or should have, observed that the space between the track and the said window would not admit of his returning over said track. If the carriage which he was assisting in replacing upon the track had been the same that inflicted the injury, the assumed knowledge or opportunity for knowledge would be more reasonable, but when we recall the fact that it was another carriage, the projections from which caught the appellee, we are not at liberty to assume the knowledge or opportunity for knowl edge, as contended.

It is also insisted that since the alleged first use of the -dormer was in going from the tramway, we must assume that he got upon the tramway by another and safe means, and that it was, therefore, a voluntary assumption of the hazards of the use of the dormer. It is expressly alleged that the passage way through the dormer "was the usual, ordinary and safest mode and way for defendant's employes" to pass back and forth to and from the tramway. We think, therefore, that the assumption that the appellee mounted the tramway by some provision safer than the dormer, is unwarranted. If we could indulge the presumptions so forcibly and ably urged by counsel, the case cited, Stewart, Admx., v. Pennsylvania Co., 130 Ind. 242, would be of controlling influence.

In that case the opportunities of the servant for knowVOL. 139-10

The Salem Stone and Lime Company v. Griffin.

ing the time and speed of trains passing the point where he alighted from the train upon which he rode to his work, were apparent from the fact that he had been engaged in working upon a bridge of the company at that point, and if that knowledge had not been assumed, the fact that he alighted on the side of danger instead of the side of a safe landing, and, though enveloped in smoke and steam, and unable to hear an approaching train because of the noise from his own train, he took the hazardous step upon the track was not ordinary care.

It is further insisted that the complaint was defective in not showing that the appellee's opportunities for discovering the dangerous agencies complained of were not equal to those of the appellant. The dangerous agencies were not in the ill repair or falling into decay of the structures, but were in the negligent construction, a fact necessarily known and charged to the knowledge of the master, while the facts are pleaded which not only disaffirm knowledge by the appellee, but, as we have said, deprive us of the power to assume that he had opportunities to know of such dangers. We conclude, there: fore, that the complaint was not subject to any of the objections urged to it by appellant's learned counsel.

Upon the trial, a witness for the appellee was permitted, over the appellant's objection and exception, to testify that, prior to the time when appellee was injured, another was injured at the same point, and in being caught between the dormer and the carriage projections. The court admitted the evidence for the purpose of showing notice to the appellant of the dangerous condition of the premises. This was not error. Louisville, etc., R. W. Co. v. Wright, 115 Ind. 378; City of Ft. Wayne v. Coombs, 107 Ind. 75; City of Delphi v. Lowery, Admx., 74 Ind. 520.

The next inquiry arises upon the charges of the court,

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