On Petition for Rehearing.
Gillett, C. J.— In the brief on behalf of appellee in support of his petition for a rehearing his counsel earnestly insists that we erred in adjudging the complaint insufficient because of the omission to allege facts showing that the risk which eventuated in appellee’s injury had not been assumed by him. Counsel for appellee omits to state whether the complaint attempts to show a common law liability, or whether it is based on the employers’ liability act, but he now contends for the sufficiency of said pleading on both grounds. We shall briefly consider the points made, and shall first examine the question as to a common law liability.
*682The complaint shows that appellant was engaged in the construction of a large building ;■ that the work was being done under one Krick, whom we held in the original opinion was shown to be a vice-principal, according to the averments of said complaint. It is further alleged therein that appellee was working under said Krick; that it became necessary to raise a heavy bent or truss, of a triangular shape, into position on the plates of said building; that said work was being prosecuted by the aid of a mechanical appliance known as a gin pole; that pursuant to the direction of said Krick appellee and a number of his co-employes raised said bent so that it rested on its base, with its apex slightly leaning against said gin pole; that thereupon said Krick carelessly and negligently directed the plaintiff to tie a rope on the base of said bent, and carelessly and negligently omitted to cause said bent to be supported by guy-lines or other means while appellee was tying said rope, but carelessly and negligently ordered and directed one Edwards to untie said guy-lines and distribute them equally on each side of said bent, which order he obeyed; that appellee did conform to and obey said order given to him, and while he was in a stooping position, having just tied said rope and undertaken to fasten a hook attached to a block and tackle in the loop of said rope, as he was directed to do by said Krick, said bent, owing to the swaying of the heavy ropes of said block and tackle or the swaying of the gin pole, or both, or some other cause unknown to appellee, fell, and that appellee was injured in his effort to escape.
It will be observed that it is not shown whether appellee or Edwards first performed' the particular task assigned him, and it does not appear that appellee did not' hear the order given to Edwards, and have an opportunity to escape before it was executed. We have, then, a case where it is made to appear that it was negligent to leave the bent leaning against the gin pole without other sup*683port, and yet there is no suggestion that appellee did not know of the situation and of the extent of the danger, or that he relied on the direction of said Krick as amounting to an implied representation of safety. Tt is true that there is a disjunctive statement suggesting that the bent might have fallen from a cause unknown to appellee, but, if it fell from either of the causes expressly stated, we may infer that, so far as knowledge was concerned, he was as well advised of the danger as the master’s representative could have been expected to be. This is not a case where the direction of the yice-principal can be said to have taken the servant out of the course of his employment, for the silence of the complaint upon the point permits us to infer that the details of his work 'only varied to the extent that the work of construction progressed.
At least, as applied to cases where it may be inferred that the danger had become one of the assumed risks of the employment, it has been many times held that .the complaint of the servant must aver facts showing that the risk was not one which he had assumed. Lake Shore, etc., R. Co. v. Stupak, 108 Ind. 1; Indiana, etc., R. Co. v. Dailey, 110 Ind. 75; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265; Wabash, etc., R. Co. v. Morgan, 132 Ind. 430; Big Creek Stone Co. v. Wolf, 138 Ind. 496; Peerless Stone Co. v. Wray, 143 Ind. 574; Potter v. Knox County Lumber Co., 146 Ind. 114; Cleveland, etc., R. Co., v. Parker, 154 Ind. 153, and cases cited; Chicago, etc., R. Co. v. Glover, 154 Ind. 584; Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266; Williams v. Clough, 3 Hurl. & Nor. 258; Bogenschutz v. Smith, 84 Ky. 330, 1 S. W. 578; Buzzell v. Laconia Mfg. Co., 48 Me. 113; Coal & Car Co. v. Norman, 49 Ohio St. 598, 32 N. E. 857; Missouri Pac. R. Co. v. Baxter, 42 Neb. 793, 60 N. W. 1044.
In Williams v. Clough, supra, a servant sued his master, alleging that the defendant had an unsafe ladder, and that well knowing that said ladder was unsafe, he wrongfully *684and deceitfully ordered and directed the plaintiff, as such servant, to carry corn up said ladder, and that the plaintiff, in obedience to said order, and believing said ladder to be fit and proper for use for the purpose aforesaid, and not knowing the contrary, did carry said corn up said ladder, and that while so doing, and by reason of such ladder being unsafe and defective, he fell, etc. It was objected that the declaration should have shown that the servant did not have the means of knowing that the ladder was unsafe, but the majority of the court were of the opinion that the declaration was sufficient. Bramwell, B., however, said: “I abide by the opinion I expressed in the case referred to, that a master can not be held liable for an accident to his servant while using machinery in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowledge as the master. I should be inclined to say that the declaration is good or bad, as it does or does not negative the servant’s means of knowledge. That, however, is a mere question of special pleading. And, as the lord chief baron and my brothers Martin and Channell are of opinion that the declaration is good, it is not necessary that I should further inquire whether it ought to contain, or does contain, such an averment.” In this State an allegation of a wánt of knowledge negatives imputed knowledge. Pennsylvania Co. v. Witte, 15 Ind. App. 583, and cases cited; Consolidated Stone Co. v. Summitt, 152 Ind. 297.
Mr. Wood, in his work on master and servant, §382, after stating some of the elements required to be made out by the servant in a suit against the master for negligence, says: “When this is established, he [the servant] is met by another presumption, the force of which must be overcome by him, and that is, that he assumed all the usual and ordinary hazards of the business. To overcome the force of this presumption he must show that the injury did not arise from an obvious defect in the instrumentalities of *685the business, or from a hazard incident to the business, but from causes that were previously unknown by him to exist, or from extraordinary causes and .not from causes that he ought to have foreseen, and can be fairly said to have assumed, or some legal excuse for taking the risk, if known to him, which strips his act of the imputation of negligence and overcomes the presumption that he voluntarily took the risk upon himself.” While it is true that 'the servant is not bound to anticipate that his master will, without warning, direct him to do an act that will expose him to serious peril, yet even such peril, if of obvious character, may become a part of the risks of the employment, if, with a knowledge of its nature and extent, the servant voluntarily undertakes it. As stated in one of the leading text-hooks on the law of negligence: “If,- however, the servant knows what the new dangers are, or if they are obvious to persons thus suddenly called to do such work, and he is able to appreciate the peril involved, and is not acting under such coercion as would in other cases excuse him, he assumes the risk of this new work, to the same extent as he did those of his regular employment.” Shearman & Redfield, Negligence (5th ed.), §186a.
It is required that a complaint should state facts showing the existence of a duty in order to predicate a charge of ' negligence upon it. Faris v. Hoberg, 134 Ind. 269, 39 Am. St. 261; Louisville, etc., R. Co. v. Sandford, 117 Ind. 265. In the latter case it was said that where the servant has assumed the risk the master “is exonerated because the employe himself assumes the danger, as increased, and, as he voluntarily assumes it, the master is .relieved. The parties change positions; the employe assumes the risk that, If it were not for his knowledge, his employer would be compelled to assume. The duty which the employer is under is materially affected by the element of knowledge, and unless a duty is shown of course there can be no actionable negligence, since a duty lies at the *686foundation of every right of action grounded on the negligence of a defendant.”
It is true that if the facts of the case had been shown in evidence under a sufficient complaint, the jury, having to deal with a mixed question of law and fact, might have been authorized to conclude that appellee had not assumed the ¿risk under the particular circumstances; but appellee can not successfully invoke authorities upholding the right of recovery upon the part of a servant, decided as questions as to the effect of evidence, to save a bad complaint. In Louisville, etc., R. Co. v. Sandford, supra, it was said: “The question comes to us as one of pleading and not as one of evidence. Material facts must' be directly stated in a pleading, but they may be inferred from testimony and from circumstances, when the question is as to the measure and sufficiency of proof. Inferences are admissible and controlling where the question is one of proof, but not so where the question is one of pleading. It is not enough to plead evidence from which the facts may be inferred, but the facts themselves must be stated in an issuable form.”
In Louisville, etc., R. Co. v. Corps, 124 Ind. 427, 8 L. R. A. 636, this court stated: “We are here dealing with a question of pleading and not of evidence. There is, as is well known, an essential difference between matters of pleading and matters of evidence; in pleading, facts must be directly and positively averred, while as matter of evidence conclusions may be inferred, without positive statements, from facts and circumstances. In pleading, it is incumbent upon the plaintiff to state all the facts essential to a cause of action, and if any material fact is lacking the complaint will go down before a demurrer. A material fact is here absent, and that is the fact that the danger was not an incident of the service in which the plaintiff voluntarily engaged. This fact must be averred, as the rules of pleading require, although if the question were one of *687evidence it might be inferred.” To these statements we may appropriately add the following from the case of Wabash, etc., R. Co. v. Morgan, 132 Ind. 430, 441: “The general rule is that negligence or breach of duty is not presumed, and this rule must benefit the employe as well as the employer. It can. not be a sword to the one and a shield to the other. But the rule to which we have referred does not authorize an employe to act without care. lie must, notwithstanding the presumption, use reasonable care, but reasonable care, as we have seen, does not cast upon him the duty of making an inspection to discover latent defects.” We deem it clear, in the light of the above authorities, that the complaint was insufficient as a common law statement of liability.
As to the sufficiency of the complaint under the employers’ liability act, the general rule is that if a person seeks to maintain an action under a statute, he must state specially every fact requisite to enable the court to judge whether he has a cause of action under the statute. Ezra v. Manlove, 7 Blackf. 389; Montgomery v. State, ex ret., 53 Ind. 108; Weir v. State, ex rel., ante, 435; Bartlett v. Crozier, 11 Johns. 439, 8 Am. Dec. 428, and cases there cited; Austin v. Goodrich, 49 N. Y. 266. In the leading case of Spieres v. Parker, 1 Durn. & East. 141, which was an action to recover a penalty provided for by statute, the plaintiff in his declaration negatived an exception found in the section providing for the penalty, pursuing the words of the exception. It was held that, as the plaintiff had not brought himself within the exception as construed by the court, his declaration was bad, even after verdict. We have a number of^cases in this State in which it is held that if by judicial construction the meaning of an act has been narrowed, so that the'provisions thereof do not, without some other element, constitute a crime, it is necessary to charge the offense so as to show that a crime has been committed. Bates v. State, 31 Ind. 72; Manheim v. State, *68866 Ind. 65; Schmidt v. State, 78 Ind. 41; State v. Welch, 88 Ind. 308; Stropes v. State, 120 Ind. 562. It was held by the supreme court of Massachusetts, in Williams v. Hingham, etc., Turnpike Corp., 21 Mass. 341, after a consideration of the English authorities, that the rule of pleading relative to negativing exceptions is applicable to cases of a civil nature.
In Elliott, Railroads, §1349, in speaking of employers’ liability acts, it is said: “There can, of course, be no doubt that the general rules of pleading and evidence apply to actions against employers under the statute except where they are changed by the statute.”
Under §2 'of the act under consideration (§7084 Burns 1894) it was expressly provided that neither an employe nor his legal representative should be entitled to recover under the act in any case “where the injury results from obedience to any order which subjects the employe to palpable danger.” This clearly shows one of the intended limitations upon the language of §1, and with the repeal of §2 the liability in a given case must rest on the section containing the enacting clause. Not only do the rules of construction render it proper for us to construe the enactment in the light of the common law, but by the creation of a liability based on “negligence” we are required to look to common law principles in determining the meaning of the general Assembly in the use of the term. As observed by Lord Cranworth in Patterson v. Wallace, 28 Eng. Law & Eq. 48: “In England, in Scotland, and in every civilized country, a party who rushes into danger himself can not say: That is owing to your negligence.” The common law and statute being the verycwarp and woof of the law on which a claim of liability is asserted, we deem it clear that the exception must be implied in the very section which extends the responsibility of the master, and that the exception should be negatived.
If the allegation that the appellee was “in the exercise *689of due care aud diligence” can be said to amount to an averment of a want of contributory negligence, yet this does not show that the risk was not assumed. As said in Indiana, etc., Oil Co. v. O'Brien, 160 Ind. 266: “Where a person has knowledge'of and fully appreciates a danger, and under such circumstances, without any special exigency compelling him, he exposes himself to such danger or peril, his act in the premises may be deemed to have been voluntary. Contributory negligence in such a case can not properly be said to be an element therein, for certainly the voluntary act of a party in exposing himself to a known and appreciated danger is wholly incompatible with an act of negligence or carelessness, for it must' be manifest that carelessness in regard to a matter is not the same as the exercise of a deliberate choice in respect thereto. Freedom of the will, in fact, is the thing emphasized by the principle asserted in the maxim volenti non fit injuria. It certainly must be true that in an act where design is shown the imprudence or negligence of the actor is wholly immaterial as a feature therein.”
After a careful reexamination of the questions discussed in the brief of appellee on petition for a rehearing, our views upon such points, as expressed in the original opinion, have been confirmed rather than shaken. We therefore overrule said petition.