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same as clause 4 of section 1 of the English employers' liability act of 1880, and clause 4 of section 2590 of the Alabama employers' liability acts of 1885. What is obedience to particular instructions was considered in Whatley v. Holloway, 6 Times Law R. 190, s. c. 62 Law T. (N. S.) 639, 54 J. P. 645, decided in 1890. In that case one Ancliffe was employed by the defendant to attend to an engine and boiler. His duty was also to assist the plaintiff in working a circular saw, in doing which he was instructed not to neglect the engine. At the time of the accident, Ancliffe and the plaintiff were at work with the saw; the plaintiff feeding it with wood, Ancliffe at the other end receiving the wood as it came from the saw, and holding the same so as to steady it. A noise being heard from the engine indicating that it required attention, Ancliffe let the piece of wood he was holding go without warning. The result was that the piece of wood the plaintiff was holding was rendered unsteady, and the plaintiff's hand was knocked against the saw and injured. The jury found a verdict for the plaintiff, with £40 damages. The question was whether, under said subdivision 4, there was an act or omission done or made in obedience to particular instructions. The plaintiff contended that the instruction to Ancliffe not to neglect the engine was a particular instruction, obedience to which caused the accident. Defendant's contention was that no particular instruction within said subdivision had been given, and, if the instruction was held to be a particular one, that Ancliffe's act was merely the negligent act of a fellow servant, and not done in obedience to the instruction. On appeal the divisional court was in favor of the defendant's contention that the instruction given to Ancliffe was not a particular instruction within the meaning of the statute. For the purposes of the case, however, the court assumed that it was, and said, in substance, that the instruction to Ancliffe was not to neglect the engine; that this meant that he was to attend to the engine with due regard to the safety and lives of others, and not that he should look after the engine at all hazards without regard to the safety of others; that the instruction was a reasonable one; that the engine was to Ancliffe's first care, at the same time leaving his work in a proper and reasonable manner. If Ancliffe had waited a few seconds and given plaintiff notice before leaving that would not have been a disobedience to the instruction. Therefore, Ancliffe was not required by the instruction to do as he did. "The injury, therefore, was caused here, not by Ancliffe's obedience, but by his disobedience, to his instructions." Judgment was accordingly rendered for the defendant. This was affirmed in the court of appeal, where Lindley, L. J., said (6 Times Law R. 353, 354): "No doubt Ancliffe was required to attend to the engine, but the instruction did not require him, when it was necessary to

attend to the engine, to leave the saw with. out giving his mate notice. It was impossible to so construe Ancliffe's instructions as involving this,-that he must go away without giving notice to the plaintiff." This was the construction given said subdivision in 1890 by the English courts long before the same was re-enacted in this state in 1893 as subdivision 3 of section 1 of the employers' liability act. City of Laporte v. Gamewell Fire Alarm Tel. Co., 146 Ind. 466, 469, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. Rep. 359; Hilliker v. Railroad Co., 152 Ind. 86, 88, 52 N. E. 607, and authorities cited; Board v. Conner, 155 Ind. 484, 496, 58 N. E. 828, and authorities cited. In the second paragraph the right of McGill to give the signal to stop the hand car, and that it was given in a proper manner, is not questioned. Said signal, if it may be called an instruction within the meaning of said subdivision, did not require the brakemen to stop the hand car in such a manner as to endanger the lives of the persons riding thereon, but that they should stop the car with a due regard to the safety of the persons mentioned. It is evident that if the brakemen, in response to the signal to stop, had stopped the hand car with a due regard to the lives of the persons on the car, and without injuring them, it I would not have been a disobedience to such signal. Said signal did not require the brakemen to stop the car in the manner they did. The injury was therefore caused, not by the brakemen's obedience, but by their disobedi ence, to McGill's signal, as was said in Whatley v. Holloway, supra; and said second paragraph is not, therefore, sufficient under said subdivision 3. Laughran v. Brewer, 113 Ala. 509, 518, 21 South. 415. It is not necessary, therefore, to determine whether or not the signal given by McGill to the brakemen to stop the car was a particular instruction, or whether he was delegated with the authority of the railroad in that behalf, within the meaning of said subdivision 3.

Appellant contends that the fourth paragraph of complaint is sufficient, under the second subdivision of section 7083, Burns' Rev. St. 1901 (section 5206s, Horner's Rev. St. 1901), supra, which is as follows: "Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employé at the time of the injury was bound to conform and did conform." This subdivi sion is substantially the same as subdivision 3 of section 1 of the English employers' liability act of 1880 and the Alabama employ. ers' liability act of 1885. Appellee insists that no negligence is charged against McGill as foreman, in said fourth paragraph, and that, before appellant can recover under said subdivision 2, "the injury must have resulted (1) from the negligence of one clothed with authority to give the order to the injured servant; and (2) the injured employé must, at the time, have been conforming to such

negligent order, and conforming because he was bound to do so; that no negligent order was given appellant. The case is simply one of a proper order given in a proper way, and through the negligence of a fellow servant of appellant in the execution of the order his injury resulted." Counsel for appellee are incorrect in their claim that the fourth paragraph of complaint does not charge any negligence against McGill, but only shows that the injury was caused by the negligence of the brakemen. Said fourth paragraph is the same as the first, except it is expressly aver red that "McGill, the section foreman, negligently gave the brakemen on the front hand car the signal to stop the front hand car suddenly and quickly when the same was going at the speed of twenty miles per hour, without giving appellant and the other persons on the front of said car notice thereof; and that said brakemen complied with said signal and stopped said car suddenly and quickly, as it was their duty to do, and thereby appellant was thrown violently from the car and injured; that the obedience to said order to so stop said car would necessarily cause said car to stop suddenly, and would endanger the life and limb of this appellant and others so stationed on said front car; and to so stop said car while running at the rate of twenty miles per hour was calculated to greatly increase the danger and hazard to appellant, which said McGill well knew, and did increase the danger and hazard to him, and by reason of giving said order as herein set out appellant received his injuries; that he had no notice or knowledge, and no means of knowing, said hand car was to be stopped when it was, or that such order to stop was, or would be, given by said McGill, section foreman." It is also alleged in said paragraph that "McGill, section foreman, ordered said extra gang of men, including appellant, to go on hand cars over appellee's track to meet a gravel train for the purpose of unloading the gravel from the cars of said train; that appellant, in obedience to the orders of said McGill, in company with eight others of said extra gang, got on one hand car, and McGill and others of said extra gang got on another hand car, and started to meet said gravel train"; that appellant was bound to conform, and did conform, to said order of McGill, section foreman, in going upon said hand car to meet said gravel train. It is true, as a general rule, that a section foreman, in giving such signal, has the right to assume that the brakemen will obey the same intelligently, having a due regard to the safety of themselves and others; that they will execute such signals in such manner and with such precaution as not to endanger the life or limb of anyone, if that can reasonably be done without disobedience to the order. If it was the duty of the brake64 N.E.-39

men, when the signal to stop was given by McGill, to notify those on the car with them of such signal, in order to give them an opportunity to protect themselves, and the failure to give such notice, or any other negligence on the part of the brakemen, who, under the circumstances, were the fellow servants of appellant, caused the injury, appellee was not liable. It is alleged, however, that the injury complained of was caused by the negligence of the section foreman. It is not necessary, as was held by this court in Railroad Co. v. Wagner, 153 Ind. 420, 53 N. E. 927, that the "order or direction in said subsection be negligent, but it is sufficient if the employé was bound to conform, and was conforming at the time of the injury, to the order or direction of the person whose negligence caused the injury." Ruegg, Empl. Liab. (5th Ed.) 106, 107; Bev. Empl. Liab. (2d Ed.) pp. 152-161; Dresser, Empl. Liab. p. 308; Wild v. Waygood [1892] 1 Q. B. 783, s. c. 8 Times Law R. 410. The question as to what kind of orders and directions is referred to in subdivision 2, and the connection that must exist between such "order or direction" to which the injured employé is bound to conform and is conforming when injured and the negligence of the person giving such order or direction, is discussed to some extent in the following authorities: Ruegg, Empl. Liab. (5th Ed.) pp. 98-105; Bev. Empl. Liab. (2d Ed.) pp. 152-161; Dresser, Empl. Liab. pp. 295-310, §§ 64-68; Railroad Co. v. Wagner, supra; Snowden V. Baynes, 24 Q. B. Div. 568, 59 Law J. Q. B. 325; Wild v. Waygood [1892] 1 Q. B. 783, 61 Law J. Q. B. 391, 8 Times Law R. 410-412; Railroad Co. v. George, 94 Ala. 199, 218, 219, 10 South. 145; Manufacturing Co. v. Gross, 97 Ala. 220, 226, 227, 12 South. 36; Railway Co. v. Chambliss, 97 Ala. 171, 176, 11 South. 897. See, also, Dantzler v. Iron Co., 101 Ala. 309, 14 South. 10, 22 L. R. A. 361. It was said in Railroad Co. v. Wagner, 153 Ind. 424, 53 N. E. 928: "The order to loose the truck was the proximate cause of the plaintiff's injury. And it was both directing the plaintiff into the dangerous situation, that he was bound to enter, and the ordering the truck turned loose upon him without warning, that constitutes the actionable wrong. See Wild v. Waygood [1892] 1 Q. B. 783; Wright v. Wallis, 3 Times Law R. 779; City Council v. Harris, 101 Ala. 564, 14 South. 357."

We have only considered the objections to the fourth paragraph of complaint urged by appellee, as stated above, and it is clear that they are not tenable. The judgment is, therefore, affirmed as to the first, second, and third paragraphs of complaint, and reversed as to the fourth, with instructions to overrule appellee's demurrer thereto, and for further proceedings not inconsistent with this opinion.

same as clause 4 of section 1 of the English employers' liability act of 1880, and clause 4 of section 2590 of the Alabama employers' liability acts of 1885. What is obedience to particular instructions was considered in Whatley v. Holloway, 6 Times Law R. 190, s. c. 62 Law T. (N. S.) 639, 54 J. P. 645, decided in 1890. In that case one Ancliffe was employed by the defendant to attend to an engine and boiler. His duty was also to assist the plaintiff in working a circular saw, in doing which he was instructed not to neglect the engine. At the time of the accident, Ancliffe and the plaintiff were at work with the saw; the plaintiff feeding it with wood, Ancliffe at the other end receiving the wood as it came from the saw, and holding the same so as to steady it. A noise being heard from the engine indicating that it required attention, Ancliffe let the piece of wood he was holding go without warning. The result was that the piece of wood the plaintiff was holding was rendered unsteady, and the plaintiff's hand was knocked against the saw and injured. The jury found a verdict for the plaintiff, with £40 damages. The question was whether, under said subdivision 4, there was an act or omission done or made in obedience to particular instructions. The plaintiff contended that the instruction to Ancliffe not to neglect the engine was a particular instruction, obedience to which caused the accident. Defendant's contention was that no particular instruction within said subdivision had been given, and, if the instruction was held to be a particular one, that Ancliffe's act was merely the negligent act of a fellow servant, and not done in obedience to the instruction. On appeal the divisional court was in favor of the defendant's contention that the instruction given to Ancliffe was not a particular instruction within the meaning of the statute. For the purposes of the case, however, the court assumed that it was, and said, in substance, that the instruction to Ancliffe was not to neglect the engine; that this meant that he was to attend to the engine with due regard to the safety and lives of others, and not that he should look after the engine at all hazards without regard to the safety of others; that the instruction was a reasonable one; that the engine was to Ancliffe's first care, at the same time leaving his work in a proper and reasonable manner. If Ancliffe had waited a few seconds and given plaintiff notice before leaving that would not have been a disobedience to the instruction. Therefore, Ancliffe was not required by the instruction to do as he did. "The injury, therefore, was caused here, not by Ancliffe's obedience, but by his disobedience, to his instructions." Judgment was accordingly rendered for the defendant. This was affirmed in the court of appeal, where Lindley, L. J., said (6 Times Law R. 353, 354): "No doubt Ancliffe was required to attend to the engine, but the instruction did not require him, when it was necessary to

attend to the engine, to leave the saw with. out giving his mate notice. It was impossible to so construe Ancliffe's instructions as involving this,-that he must go away without giving notice to the plaintiff." This was the construction given said subdivision in 1890 by the English courts long before the same was re-enacted in this state in 1893 as subdivision 3 of section 1 of the employers' liability act. City of Laporte v. Gamewell Fire Alarm Tel. Co., 146 Ind. 466, 469, 45 N. E. 588, 35 L. R. A. 686, 58 Am. St. Rep. 359; Hilliker v. Railroad Co., 152 Ind. 86, 88, 52 N. E. 607, and authorities cited; Board v. Conner, 155 Ind. 484, 496, 58 N. E. 828, and authorities cited. In the second paragraph the right of McGill to give the signal to stop the hand car, and that it was given in a proper manner, is not questioned. Said signal, if it may be called an instruction within the meaning of said subdivision, did not require the brakemen to stop the hand car in such a manner as to endanger the lives of the persons riding thereon, but that they should stop the car with a due regard to the safety of the persons mentioned. It is evident that if the brakemen, in response to the signal to stop, had stopped the hand car with a due regard to the lives of the persons on the car, and without injuring them, it I would not have been a disobedience to such signal. Said signal did not require the brakemen to stop the car in the manner they did. The injury was therefore caused, not by the brakemen's obedience, but by their disobedience, to McGill's signal, as was said in Whatley v. Holloway, supra; and said second paragraph is not, therefore, sufficient under said subdivision 3. Laughran v. Brewer, 113 Ala. 509, 518, 21 South. 415. It is not necessary, therefore, to determine whether or not the signal given by McGill to the brakemen to stop the car was a particular instruction, or whether he was delegated with the authority of the railroad in that behalf, within the meaning of said subdivision 3.

Appellant contends that the fourth paragraph of complaint is sufficient, under the second subdivision of section 7083, Burns' Rev. St. 1901 (section 5206s, Horner's Rev. St. 1901), supra, which is as follows: "Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employé at the time of the injury was bound to conform and did conform." This subdivision is substantially the same as subdivision 3 of section 1 of the English employers' liability act of 1880 and the Alabama employers' liability act of 1885. Appellee insists that no negligence is charged against McGill as foreman, in said fourth paragraph, and that, before appellant can recover under said subdivision 2, "the injury must have resulted (1) from the negligence of one clothed with authority to give the order to the injured servant; and (2) the injured employé must, at the time, have been conforming to such

negligent order, and conforming because he was bound to do so; that no negligent order was given appellant. The case is simply one of a proper order given in a proper way, and through the negligence of a fellow servant of appellant in the execution of the order his injury resulted." Counsel for appellee are incorrect in their claim that the fourth paragraph of complaint does not charge any negligence against McGill, but only shows that the injury was caused by the negligence of the brakemen. Said fourth paragraph is the same as the first, except it is expressly aver red that "McGill, the section foreman, negligently gave the brakemen on the front hand car the signal to stop the front hand car suddenly and quickly when the same was going at the speed of twenty miles per hour, without giving appellant and the other persons on the front of said car notice thereof; and that said brakemen complied with said signal and stopped said car suddenly and quickly, as it was their duty to do, and thereby appellant was thrown violently from the car and injured; that the obedience to said order to so stop said car would necessarily cause said car to stop suddenly, and would endanger the life and limb of this appellant and others so stationed on said front car; and to so stop said car while running at the rate of twenty miles per hour was calculated to greatly increase the danger and hazard to appellant, which said McGill well knew, and did increase the danger and hazard to him, and by reason of giving said order as herein set out appellant received his injuries; that he had no notice or knowledge, and no means of knowing, said hand car was to be stopped when it was, or that such order to stop was, or would be, given by said McGill, section foreman." It is also alleged in said paragraph that "McGill, section foreman, ordered said extra gang of men, including appellant, to go on hand cars over appellee's track to meet a gravel train for the purpose of unloading the gravel from the cars of said train; that appellant, in obedience to the orders of said McGill, in company with eight others of said extra gang, got on one hand car, and McGill and others of said extra gang got on another hand car, and started to meet said gravel train"; that appellant was bound to conform, and did conform, to said order of McGill, section foreman, in going upon said hand car to meet said gravel train. It is true, as a general rule, that a section foreman, in giving such signal, has the right to assume that the brakemen will obey the same intelligently, having a due regard to the safety of themselves and others; that they will execute such signals in such manner and with such precaution as not to endanger the life or limb of anyone, if that can reasonably be done without disobedience to the order. If it was the duty of the brake64 N.E.-39

men, when the signal to stop was given by McGill, to notify those on the car with them of such signal, in order to give them an opportunity to protect themselves, and the failure to give such notice, or any other negligence on the part of the brakemen, who, under the circumstances, were the fellow servants of appellant, caused the injury, appellee was not liable. It is alleged, however, that the injury complained of was caused by the negligence of the section foreman. It is not necessary, as was held by this court in Railroad Co. v. Wagner, 153 Ind. 420, 53 N. E. 927, that the "order or direction in said subsection be negligent, but it is sufficient if the employé was bound to conform, and was conforming at the time of the injury, to the or der or direction of the person whose negligence caused the injury." Ruegg, Empl. Liab. (5th Ed.) 106, 107; Bev. Empl. Liab. (2d Ed.) pp. 152-161; Dresser, Empl. Liab. p. 308; Wild v. Waygood [1892] 1 Q. B. 783, s. c. 8 Times Law R. 410. The question as to what kind of orders and directions is referred to in subdivision 2, and the connection that must exist between such "order or direction" to which the injured employé is bound to conform and is conforming when injured and the negligence of the person giving such order or direction, is discussed to some extent in the following authorities: Ruegg, Empl. Liab. (5th Ed.) pp. 98–105; Bev. Empl. Liab. (2d Ed.) pp. 152-161; Dresser, Empl. Liab. pp. 295-310, §§ 64-68; Railroad Co. v. Wagner, supra; Snowden v. Baynes, 24 Q. B. Div. 568, 59 Law J. Q. B. 325; Wild v. Waygood [1892] 1 Q. B. 783, 61 Law J. Q. B. 391, 8 Times Law R. 410-412; Railroad Co. v. George, 94 Ala. 199, 218, 219, 10 South. 145; Manufacturing Co. v. Gross, 97 Ala. 220, 226, 227, 12 South. 36; Railway Co. v. Chambliss, 97 Ala. 171, 176, 11 South. 897. See, also, Dantzler v. Iron Co., 101 Ala. 309, 14 South. 10, 22 L. R. A. 361. It was said in Railroad Co. v. Wagner, 153 Ind. 424, 53 N. E. 928: "The order to loose the truck was the proximate cause of the plaintiff's injury. And it was both directing the plaintiff into the dangerous situation, that he was bound to enter, and the ordering the truck turned loose upon him without warning, that constitutes the actionable wrong. See Wild v. Waygood [1892] 1 Q. B. 783; Wright v. Wallis, 3 Times Law R. 779; City Council v. Harris, 101 Ala. 564, 14 South. 357."

We have only considered the objections to the fourth paragraph of complaint urged by appellee, as stated above, and it is clear that they are not tenable. The judgment is, therefore, affirmed as to the first, second, and third paragraphs of complaint, and reversed as to the fourth, with instructions to overrule appellee's demurrer thereto, and for further proceedings not inconsistent with this opinion.

(159 Ind. 149) MONTEITH v. KOKOMO WOOD ENAMELING CO.

(Supreme Court of Indiana. June 25, 1902.) MASTER AND SERVANT-PERSONAL INJURYDANGEROUS MACHINERY-STATUTORY DUTY TO GUARD-KNOWLEDGE OF DEFECT.

1. Acts 1899, p. 234, § 9 (Burns' Rev. St. 1901, 7087i), an act concerning labor, and providing means for protecting laborers,-requires all machinery of every description to be properly guarded. Section 25 declares a violation thereof a misdemeanor. Held, that a serv ant injured by a violation thereof had a right of action.

2. A complaint thereunder alleging that plaintiff was, and for some weeks had been, employed by defendant in operating a circular saw, and during the whole time there was no guard on it, in consequence of which, and of defendant's negligence in failing to provide such guard, plaintiff was injured, was sufficient, without an averment that plaintiff had no knowledge of the unguarded condition of the saw, and the danger resulting therefrom.

Appeal from superior court, Howard county; Hiram Brownlee, Judge.

Action by Frank L. Monteith against the Kokomo Wood Enameling Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Transferred from appellate court under Act March 13, 1901 (Acts 1901, p. 590). Reversed.

B. C. Moon, for appellant. Shirley & Wolf, for appellee.

Blacklidge,

DOWLING, C. J. This was an action for a personal injury alleged to have been sustained by the appellant, while in the employment of the appellee, in consequence of the neglect of the appellee to perform a statutory duty owing to him. A demurrer to the complaint for the insufficiency of the facts stated was sustained, and, the appellant refusing to amend, judgment was rendered against him. The ruling on the demurrer is assigned for error.

The material averments of the complaint are as follows: The appellee was on October 4, 1900, a corporation, and owned and carried on a factory in the city of Kokomo, Ind. On said day, the appellant was, and for some weeks had been, employed by and working for the appellee at its said factory. In the course of his employment, and in pursuance of the instructions of the appellee, the appellant was engaged in operating and using a small circular saw driven by steam at a high rate of speed. During the whole time the appellant was so employed, there | was a defect in the machinery so used by him, which was known to the appellee, and which consisted in the absence of a guard over the said saw; the appellee having negligently failed to provide any such guard. In consequence of such defect, and of the negligence of the appellee in failing to provide Buch guard, the appellant, on the day aforesaid, while in said employment, was injured by the contact of his left hand with the said

saw while he was operating the same; his thumb and two fingures being cut off. The sufficiency of the complaint is contested upon the ground that the defect which caused the supposed injury, and the dangerous condition created by it, were necessarily open and obvious; that the appellant was bound to take notice of them; and that it appears that, with knowledge of the danger, he assumed the risk. The question is, can an employé recover for an injury resulting from an obvious defect in machinery, resulting from the employer's failure to perform a statutory duty? In other words, is the complaint bad because it does not aver that the appellant was ignorant of the dangers arising from the failure of the employer to guard the saw?

Under the rules and maxims of the common law, where the danger is obvious, and known to and appreciated by the servant, if he continues in the employment without inducement through the promise of the master to repair or make safe, he waives his right to hold the master responsible for injury occurring to him from the negligence of the master, and assumes the risk of such injury himself. If the danger is as well known or as manifest to the servant as to the master, and is understood by him, the servant enters or continues in the employment at his own risk. Pennsylvania Co. v. Sears, 136 Ind. 460, 34 N. E. 15, 36 N. E. 353; Railroad Co. v. Kemper, 147 Ind. 561, 47 N. E. 214; Whitcomb v. Oil Co., 153 Ind. 513, 55 N. E. 440; Railway Co. v. Sandford, 117 Ind. 265, 19 N. E. 770; Greenleaf v. Railroad Co., 29 Iowa, 14, 4 Am. Rep. 181; Lindsay v. Railroad Co., 50 C. C. A. 298, 112 Fed. 384.

It is entirely clear, however, that, where an absolute and specific duty to guard or fence dangerous machinery is imposed upon the master by statute, such new condition must in a very material manner affect the relations of the parties, and modify to a considerable extent their rights and duties as they existed at common law. And here a distinction is to be noted between statutes such as the employers' liability act (Acts 1893, p. 294: Burns' Rev. St. 1901, §§ 70837087), which provide, in general terms, that the employer shall be liable for injuries to an employé where the injury is occasioned by reason of defects in the condition of ways, works, plant, tools, and machinery, etc., and statutes which require of the employer the performance of a specific duty, such as to guard or fence dangerous machinery. Statutes of the former class do little more than declare the rule of the common law. Statutes of the latter class impose specific obligations. A failure to comply with the requirements of the first may or may not be negligence. A violation of the second is an unlawful act or omission, a plain breach of a particular duty owing to the servant, and generally constitutes negligence per se. Railway Co. v. Burton, 139 Ind. 357, 37 N. E.

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