Anderson v. United States Rubber Co., 60 A. 1057

60 A. 1057 | Conn. | 1905

This is an action for an injury claimed to have been sustained by the plaintiff while operating a dangerous machine furnished by the defendant in disregard of its duty to exercise reasonable care to provide reasonably safe appliances for the work which the plaintiff was employed to perform. The complaint should, among other things, state wherein the defendant failed to perform such duty, by alleging, either by direct averment or by the facts alleged, or both, in what respect the machine furnished was not reasonably safe, in what particulars the defendant failed to exercise reasonable care in directing the plaintiff to work upon it, and that the alleged unsafe character of the machine thus negligently furnished caused the alleged injury; and all with such clearness that the defendant may fairly understand the charges against it, so as to be able to intelligently admit them or contest them, as it may desire upon the trial.

As showing wherein the defendant failed to exercise reasonable care to furnish a reasonably safe machine for the plaintiff to work upon, the complaint alleges that the defendant provided one which was unsafe, because an inexperienced or uninstructed operator, while engaged in the work of banking the rubber, was liable to have his hand caught between the revolving rollers; that of this danger, which was not an obvious one, the plaintiff was not informed, nor instructed by the defendant, who knew of it, and that while working upon the machine, and exercising due care, the plaintiff's hand was caught and crushed between the rollers.

The allegations that an inexperienced operator was liable to have his hand caught between the rollers, that such liability was not an apparent one, and that the defendant did not inform the plaintiff of it, are descriptive of the dangerous character of the machine provided, as well as of the defendant's acts of negligence. Ryan v. Chelsea PaperMfg. Co., 69 Conn. 454, 459. Reading the whole complaint, it is apparent that the plaintiff did not intend to say that the only danger in operating this machine arose from the fact that the device for stopping the machinery was insufficient. Independently of the alleged danger arising from the absence of such proper device, it is alleged with sufficient clearness that the machine was unsafe for the plaintiff because there was a danger, of which he had not been informed, that his hand was liable to be caught and crushed between the steel rollers. A proper device for stopping the machinery was not for the purpose of preventing an operator's hand from being caught between the rollers, but to enable him, by stopping the machinery, to prevent a more serious injury after such an accident. The absence of a proper device for stopping the machinery was but one of the alleged reasons upon which the plaintiff apparently relied as showing why it was dangerous to work upon said machine. In treating it as the only alleged reason, no effect is given to the allegation that by reason of the liability of having his hand caught and crushed between the rollers the machine upon which the plaintiff was working was unsafe for the use of an inexperienced and uninstructed person. The complaint may be regarded as framed both for the purpose of a recovery upon the ground that the machine — from the liability of one's hand being caught between the revolving rollers — was not reasonably safe to the plaintiff, because he was inexperienced and uninstructed, and, in case of failure to prove such inexperience or want of instruction, for a recovery upon the ground of defendant's failure to provide a proper device for stopping the machinery in case of accident.

So, too, the averment of paragraph 20 — that because of the absence of a proper device by which the plaintiff could have stopped the machine his hand was drawn between the rollers, etc., — instead of being regarded as the only allegation of the cause of the injury, may be treated as an allegation of another cause than that before described, namely, furnishing an inexperienced and uninstructed person with a machine in using which, with due care, he was liable to have his hand caught and crushed.

The allegations of the complaint showing how the accident happened, state the proximate cause of the injury, as found by the court, with sufficient certainty to support a judgment for substantial damages upon the facts of this case. If the facts alleged in the complaint, which have been proved to have been the cause of the injury, are not so directly and explicitly alleged in the complaint to have been the cause as to be sufficient against a demurrer, such defect did not mislead the defendant, as it contested all such allegations, and any such defect has been waived by the defendant by suffering a default and contesting these allegations under its notice, without at any time making the objection, first advanced by the trial court in its memorandum of decision, that the complaint did not rest the injury upon the defendant's failure to give proper instructions to the plaintiff. Lovejoy v. Isbell, 73 Conn. 368, 374.

The judgment for nominal damages only was erroneous, and the case is remanded for the assessment of substantial damages upon the facts as found.

Error and case remanded.

In this opinion the other judges concurred.