38 N.Y.S. 1049 | N.Y. App. Div. | 1896
We think the court had power to allow the amendment to the summons and complaint. The allegations in the complaint clearly indicated the nature of the plaintiffs cause of action — that it was sought to recover damages' for personal injuries and there was and could be no surprise to the defendant. It was clearly a mistake on the part of the attorney for the plaintiff in preparing the summons and complaint. The power to make such an amendment was recognized by the Court of Appeals in Spooner v. D., L. & W. R. R. Co. (115 N. Y. 22), where precisely the same error had occurred in the title to the action. In that case, as here, the question was not raised either by answer or demurrer. On the trial a motion was made at the close of the plaintiff’s case to dismiss the complaint upon the ground that the action was not brought in the name of the real party in interest. The motion was denied, and there was an exception:
The court by Finch, J., said: “ If it (the objection) was apparent upon the face of the complaint, it could have been reached by demurrer, for there would have been a defect of parties. Otherwise it is new matter to be pleaded in the answer, and if not no such issue is raised and no such question can be tried. (Smith v. Hall, 67 N. Y. 50.) The objection was one which, if taken in proper season, could have been obviated by a very simple and purely formal amendment, and when not taken by either demurrer or answer, must be deemed to have been waived, and may be disregarded. The difficulty was one rather of form than substance. * * * The complaint * * * stated a cause of action in favor of the infant averring a wrong done to her, and damages suffered by her, and so indicating that she was the real plaintiff appear
No question appears to have been raised in this case as to the question of contributory negligence. The real question involved is as to the alleged negligence of the defendant.
The plaintiff alleged in his complaint, among other things, that the accident and his injuries resulted from the negligence of the defendant in setting him to work with a machine which was out of repair and which could not be used with safety by any one. The learned trial judge charged the jury, among other things, “ If you find that there was a defect in this machine, that ordinary care in examining and inspecting it would have enabled the master to ascertain that defect, and that he did not ascertain it, and did not put it in the condition in which he should have if he had used ordinary care, why then he would be liable, etc. If the failure to do that was what caused the accident to happen, etc.”
The issue as to defendant’s negligence was thus fairly made and submitted, and the only question is whether there was sufficient evidence upon this issue to support the verdict of the jury.
•We think there was evidence upon which the jury might well find that the machine was in a defective condition before and at the time of the accident. There was a conflict, it is true, but there was evidence tending to show that there was a clicking noise in the machine before the accident, which the plaintiff noticed, and to which he called the attention of the foreman. There was evidence tending to show that this noise would not have been made by the machine if it had been in proper condition; that it indicated the clutch in the machine was out of order, and that if the clutch was out of order the die would continue to move up and down when the foot was not pressed upon the treadle. Upon this evidence, if credited by the jury, they might well find that the machine was not
Accidents occurring under very similar circumstances in the operating of machines of the same kind have been the subject of other actions in the courts, and verdicts therein for the plaintiff
We think there was no error in the submission of the case to the jury, and that the judgment should be affirmed, with costs.
Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., Concurred.
Judgment affirmed, with costs.