9 Daly 389 | New York Court of Common Pleas | 1880
It appears from the case, that the complaint was dismissed, for a variance between the proof and the third allegation of the complaint. What this alleged variance was, does not appear. It has not been pointed out in the respondents’ points, farther than the general statement that the plaintiff failed to make out his case; that he did not show, as alleged, that the building was negligently and carelessly built, inasmuch, that there was in the first story
If there is a variance, and the defendant proves he is misled by it, it is not a matter which can be remedied or supplied, unless an"amendment to the complaint is allowed; because the proof is in, and it shows a conflict or material difference between the facts as proved, and as they are averred. But it is otherwise when a motion is made to dismiss the complaint for a failure of proof; because it may be in the plaintiff’s power, as it frequently is,, to supply the proof, when he is advised by a motion, or by the views of the court, of what is wanting to make out his cause of action. We cannot affirm the judgment, upon the ground that the evidence given did not establish a cause of action ; for no motion was made in the court below to dismiss the action for failure of proof; and we do not know, if such a motion had been made, but that the proof might have
In my opinion, however, there was enough in the evidence to entitle the case to go to the jury, the only question, in my opinion, being, whether there was a proper want of- care and caution on the part of the plaintiff, in going over the floor, where the hole was, through which he fell; and which, as a question of co-operative negligence was, in my opinion, upon the facts disclosed, a question for the jury and not for the court. The existence of a hole in the floor, which was partially guarded by a rope, attached to posts,- but a portion of which was left unguarded by a rope or otherwise, was shown. /It was not necessary to prove that the owners of the refinery Iliad actual notice that the hole was unguarded, it being their duty, when they suffered persons to go over the building, to see that a pitfall like this was securely and properly guarded (Beck v. Carter, 68 N. Y. 283 ; Camp v. Wood, 76 N. Y. 92; Bassett v. Fish, 75 N. Y. 303). It was also shown that the plaintiff was not an intruder or trespasser in the building, but that he was there with the defendants’ consent, engaged in getting the tare of certain hogsheads of sugar for the person who had employed him. He was allowed, by one of the employes of "the defendants, who had charge of the defendants’ business, to send men who were acting under him, to clean the sugar out of some hogsheads which were near the place where he fell through the hole, and as they were waiting for boats to come up the river, he went to this place to see whether the men he had in charge would go down town or stay there, and it was whilst engaged in this act, whilst he was passing along the floor, behind the men, that he fell through the hole. Under those circumstances, the defendant owed a duty to him and to all others allowed to go over this part of the premises, to have this hole or pitfall properly protected or guarded; and for an injury arising from their neglect to do so, to a person
J. F. Daly and Van Hoesen, JJ., concurred:
Judgment reversed and new trial ordered.