W. B. Conkey Co. v. Larsen-173 Ind. 585.

master's failure to warn and instruct the plaintiff in the use of said machine and how to avoid the dangers arising from its operation, at the time knowing the plaintiff to be inexperienced in the use of the machine and ignorant of the dangers to his hand from the swerving of the cut.

Appellant submits that the paragraph is bad, for failure to charge that the master had knowledge, either actual or constructive, of the dangerous character of the machine complained of, and for failure to show that the master possessed any superior knowledge of how such danger might be avoided.

It is elementary that the old law requires the master to furnish his servant with a working place and appliances

that are reasonably safe, and to keep them so, except 1. as to such dangers as are open, ordinary and common

to such place or instrumentality, which the servant is held to know and assume under his contract of employment, and except further such new dangers as arise and are voluntarily encountered by the servant after knowledge and comprehension of the same. The master is only liable for the neglect, or omission, of some duty owing to the injured person. In other words, to render the master liable it must be shown that the injury complained of was the direct result of some fault of the master.

Another well-recognized duty of the master is not to assign a servant who, from youth or other cause, is deficient in experience, to the operation of a dangerous machine, 2. without giving him such warning and instruction in regard to avoiding injury as may, from the age or want of experience of the servant, bring the danger and means of its avoidance within his comprehension. When, however, in operating a machine, the danger and means of escape are open and visible to the operator and within his knowledge and appreciation when exercising his faculties with care and caution, the master is not required to give either warning or instruction. Atlas Engine Works v. Ran

W. B. Conkey Co. v. Larsen-173 Ind. 585.

dall (1885), 100 Ind. 293, 296, 50 Am. Rep. 798; Republic Iron and Steel Co. v. Ohler (1903), 161 Ind. 393; 26 Сус., 1171, and many cases collated in note.

The law does not require the master to give warning and instruction to one who is already fully informed. The servant must keep his eyes open and look out for himself. If he becomes injured from want of proper care and attention to obvious and known dangers, he cannot find a right of recovery against the master, under the cloak that he was not warned and instructed.

The vital question, therefore, is, Was the danger to which the plaintiff was exposed, as shown by his complaint, of such a character as was not open and apparent to the observation and apprehension of appellee, upon the proper exercise of his faculties, assuming that he was giving due care and attention to the work in which he was engaged? The contrary not being averred, it will be presumed that the plaintiff was endowed with all the natural faculties, and that his judgment and powers of reason were devel3. oped to the extent usual to one of his age. It is

alleged that he was sixteen years of age when hurt, and was at the time engaged in the work he was employed to perform; that he had operated the machine, at intervals, daily since his employment. It is not averred how long he had been so employed and had operated the machine, and in the absence of such averment we may presume that his use of the machine had covered a period of time which, if alleged, would at least not have aided his cause of action, under the firmly established rule that a party's pleading is presumed to be as strongly in his favor as the facts will warrant. Wabash R. Co. v. Engleman (1903), 160 Ind. 329; Wabash R. Co. v. Beedle (1910), ante, 437.

It is not averred that the machine, or any of its parts, was out of repair, or was defective. Neither is it 4. averred that the defendant knew, or had opportunity and should have known, that the impact of the

W. B. Conkey Co. v. Larsen-173 Ind. 585.

chisels upon the cut ever had caused, or was liable to cause, a cut that was being operated upon to swerve and be cast off in the manner described in the complaint as having caused the injury to plaintiff. An averment that the plain

tiff "was inexperienced in the use of machinery" is 5. not equivalent to an averment that he was inexperienced in the use of the particular machine that hurt him, and one that he had used, at intervals, daily during his employment. It is shown that the full scope of the danger in operating the machine was directly in front of the operator, about two feet away, waist high, of simple nature, and fully open and visible to one who was duly careful and attentive to the work he was doing.

Before a cause of action can be said to be stated, it must appear affirmatively that the plaintiff's injury was the di

rect result of some fault or negligence of the defend6. ant in respect to the particular cause of the injury. Wherein can it be said from the averments of the first paragraph of the complaint that it was the defendant's negligence that caused the plaintiff to be hurt?

The master is not required to caution or instruct against unexpected, improbable and unusual occurrences. 7. Atlas Engine Works v. Randall, supra; 4 Thompson,

Negligence (2d ed.), §4099, and illustrative cases collated in note. He is only required to instruct and caution against the usual and probable consequences that may flow from the exercise of proper care and attention while performing the duties of the employment.

Without some fact or averment showing that the cause that produced the injury had previously presented itself, either frequently or occasionally, or that the character 8. of the machine, or work it was designed to perform when properly handled, was calculated to produce the injuring cause, it cannot be said that such occurrence should be regarded as usual or probable, or reasonably to

W. B. Conkey Co. r. Larsen-173 Ind. 585.

be anticipated. And in such case it is clear that the law will not impute to the master knowledge of the extraordinary and unexpected danger, and hold him liable for a failure to warn the servant against it. If appellant had no actual knowledge of the injuring danger, and there was nothing in the history, construction, or in the proper and attentive operation of the machine from which the law would impute knowledge, it is not perceived how it could be counted at fault, or guilty of negligence, in failure to give warning of that of which it itself was ignorant and unsuspecting. For want of an averment of knowledge of the master, that the mortiser contained the danger complained of, we

think the first paragraph of the complaint fails to 9. state a cause of action. Evansville, etc., R. Co. v. Duel (1893), 134 Ind. 156; Chicago, etc., R. Co. v. Fry (1892), 131 Ind. 319; Malott v. Sample (1905), 164 Ind. 645; Creamery, etc., Mfg. Co. v. Hotsenpiller (1900), 24 Ind. App. 122; Standard Oil Co. v. Fordeck (1904), 34 Ind. App. 181.

Furthermore, if the casting off of the block by the impact of the chisels, as alleged, had occurred frequently or occasionally to the plaintiff's knowledge, and he had con10. tinued in the employment without notice to the mas

ter and his promise to repair, the plaintiff should be held to have assumed the risk. Hattaway v. Atlanta Steel, etc., Co. (1900), 155 Ind. 507; Wolf v. Big Creek Stone Co. (1897), 148 Ind. 317; Diamond Plate Glass Co. v. DeHority (1896), 143 Ind. 381; 4 Thompson, Negligence (2d ed.), $4657. The paragraph is silent as to these matters. We think the demurrer should have been sustained to the first paragraph of the complaint.

No question is presented here as to the sufficiency of the second paragraph of the complaint.

It is not shown by the record that the judgment rests wholly upon the second paragraph. In fact, it appears from

Thompson v. Turner-173 Ind. 593.

interrogatories and answers that the plaintiff's age, 11. experience and unwarned condition were prominently before the jury, and we can by no means say that the judgment does not fully rest upon the first paragraph. At most, it is not shown by the record that it rests exclu-sively upon the second paragraph, and there should, therefore, be a retrial. Cleveland, etc., R. Co. v. Perkins (1908), 171 Ind. 307; Baltimore, etc., R. Co. v. Jones (1902), 158 Ind. 87; Ervin v. State, ex rel. (1898), 150 Ind. 332; NortonReed Stone Co. v. Steele (1903), 32 Ind. App. 48.

There are other questions presented, relating to the interrogatories, the evidence, and the instructions to the jury, which are not likely to arise again, and we, therefore, pass their consideration.

Judgment reversed and cause remanded, with instruction to sustain the demurrer to the first paragraph of the complaint, with leave to amend, if desired, and to grant appellant a new trial.

THOMPSON ET AL. v. TURNER ET AL.