104 Cal. 542 | Cal. | 1894
Respondent was injured while employed by appellant in working upon and about a machine engaged in driving piles. He recovered a judgment for such injuries, and this appeal is taken from that judgment and from the order denying the motion for a new trial.
It is insisted that a special demurrer to the complaint upon the ground of uncertainty was well taken. The complaint alleged “ that the defendant so carelessly and negligently constructed said piledriver, and so carelessly and negligently provided unsafe and unsuitable machinery and appliances with which to do the work, that upon raising the hammer to drive the first pile the crossbeam on the top of the said piledriver was pulled off, and the said crossbeam fell upon the plaintiff while in the line of his employment and duty aforesaid.” This allegation could have been made more definite and certain; at the same time it states the facts as to the manner and cause of the accident fairly well and sufficiently in detail to defeat a reversal of the judgment upon the ground of a technically defective pleading. It is not every error of the trial court committed in overruling a special demurrer to a pleading that will justify this court in sending the case back for a new trial. When the issues are fairly made by the answer, and the evidence bearing upon the issues is fairly presented to the court, there is no reason why a defective allegation in the complaint, even though it be unsuccessfully assailed by a special demurrer, should cause a reversal of the judgment and a retrial of the case. It is fully apparent by the record that no injury resulted to the appellant by the action of the court, even conced
It is insisted that the evidence is insufficient to Slip* port the finding of fact made by the court as to the imperfect construction of the piledriver, and appellant states that he makes this contention, fully realizing the force of the rule that this court will not disturb the findings of fact when a conflict of evidence is presented. When the accident occurred respondent was at the base of the piledriver, near the foot of the brace ladder, and he was struck down and injured by the crossbeam or head-block falling upon him from its proper position at the top of the piledriver, some eighty-five feet above. It is insisted by respondent that it fell by reason of the defective and unsubstantial manner in which it was fastened to the gins and the ladder, taken in connection with the way in which the rope or runner (as it is termed) that raises and lowers the hammer was connected thereto, it being claimed that this connection was of such a character as to deprive the hammer of sufficient space to allow it to be chocked at the top of the platform and below the crossbeam or head-block. Upon the part of appellant it is claimed that the head-block was knocked off by the hammer by reason of the negligence of the engineer — a fellow-servant — in raising the hammer too rapidly, and in not stopping it sufficiently soon to avoid contact with the head-block. The head-block was fastened to the top of the driver by two bolts, but a short time before the accident occurred, in hoisting the pile, one end of the block became loosened and displaced from its proper position, and, while it was subsequently replaced, nothing was done to fasten it more securely, and the block was in this condition when the accident occurred.
As to the contention of appellant that the engineer was guilty of negligence in raising the hammer too rapidly, it is sufficient to say that the evidence is
There is nothing in the record to indicate that re
For the foregoing reasons it is ordered that the judgment and order he affirmed.