Behm v. Armour

LyoN, J.

The rule is settled in this state that if a servant, knowing the hazards of his employment as the business is. conducted, is injured wkile engaged therein, he cannot maintain an action against his employer for the injury merely because the business might have been carried on in a safer mode. But if there are increased perils in the business by reason of the use of defective appliances or otherwise, known *3 to the master or for which he is responsible, and unknown to the servant, if the latter is injured thereby, and is free from negligence, the master is liable. Strahlendorf v. Rosenthal, 30 Wis., 674 ; Naylor v. C. & N. W. R’y Co., 53 Wis., 661 .

The complaint in this case sufficiently alleges that the plaintiff was in the service of defendants, engaged in shoveling coal for them; and that he was injured by reason of the breaking and falling of a platform upon which he stood when doing such work. Also, that the platform was constructed by the defendants, and that it fell because they constructed it in a negligent, careless, and unskilful manner. This is a direct and sufficient charge that the plaintiff was injured by reason of the negligence of the defendants. This charge is not affected by the averment that the mate of the steam-barge superintended the erection of the platform for the defendants, any more than it would have been had the pleader stated the names of defendants’ hired men who performed the manual labor in its erection. The complaint contains no express averment that the plaintiff did not know of the defective construction of the platform, but it does aver that he was free from any fault or negligence contributing to the injury complained of. The averment was doubtless intended by the pleader to negative any knowledge of the plaintiff, or means of knowledge, which would cast upon him the risk or hazard of working upon the platform, and thus relieve the defendants from liability for the ■ consequences of their alleged negligence. We think it our dut}r, under the liberal rule for the construction of pleadings which now prevails, to effectuate that intention by holding that the complaint sufficiently negatives any knowledge on the part of the plaintiff, or reasonable means of knowledge, that the platform was not properly constructed.

Thus construed, the complaint states a cause of action, and the demurrer thereto was properly overruled.

By the Court.— Order affirmed.