Steven v. Saunders
34 App. D.C. 321
D.C. Cir.
1910
Check Treatment
Mr. Justice Robb

delivered the opinion of the Court:

We will first consider the assignment of error directed to the action of the court in allowing recovery under the third or amended count of the declaration, this count, as previously stated, having been filed more than a year after the death of the plaintiff’s intestate. If this count constitutes a new cause of action, the court erred in permitting recovery thereunder. If, on the other hand, it is but an elaboration of matters stated in the second count there was no error.

In the second count, as we have seen, it is averred that the defendant fáiled in its duty to provide a reasonably safe place for its employees to work in when signaling for, hoisting, landing, and setting said coping stones, and the manner of the injury is described as in the third count; In both counts the right of recovery is based upon the failure of the defendant to provide a safe place in which to work. The manner of the injury is similarly set forth in both counts, and while, in the amended count, the cause of action is more explicitly stated, we do not think a new and independent cause of action is there stated. The purpose of the statute is to give the defendant early notice that damages are to he sought from him, and tho nature and scope of the claim. Such being the object of the statute, the plaintiff’s right of recovery ought not to be defeated by a too technical construction of an amended declaration. Beasley v. Baltimore & P. R. Co. 27 App. D. C. 595, 6 L.R.A. (N.S.) 1048; District of Columbia v. Frazer, 21 App. D. C. 154, 158; Texas & P. R. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829, 12 Sup. Ct. Rep. 905. See also Rio Grande Dam & Irrig. Co. v. United States, decided Dec. 13th, 1909, in the Supreme Court of the United States, 215 U. S. 260, 54 L. ed. —, 30 Sup. Ct. Rep. 97.

The point is also made that, inasmuch as no notice was taken of the defendant’s plea of the statute of limitations to said third count of the declaration, the plea must be taken to be admitted. This purely technical defense was waived by appellant by proceeding to trial on the third count, submitting pray*333ers upon it, and treating it as though at issue. Such conduct of the defendant justified the plaintiff in believing that formal answer to this plea had been waived. Moreover, the irregularity was cured by verdict and judgment. Laber v. Cooper, 7 Wall. 565, 19 L. ed. 151.

The refusal of the court to take the case from the jury after all the evidence had been introduced is next assigned as error. This assignment merely goes to the sufficiency of the evidence to support the verdict, and does not raise all questions that might have been raised by appropriate motions during the progress of the trial. It is now urged as one ground for this motion, that James Steven, Jr., was a fellow servant of the decedent, and that, therefore, no right of action accrued to the plaintiff. As previously stated, Young Steven testified that he was superintendent, in charge for his father. The evidence also showed that he hired and discharged the help and directed and superintended the work. Indeed, the trial proceeded upon the theory that he “was superintendent and stood in the place of his father in all that was done.” The court, as previously stated, so charged the jury without objection from the defendant. By this conduct the defendant is now estopped. The contention is an afterthought, not in contemplation when the motion for a directed verdict was made.

It is also insisted that there was no evidence before the jury to support the finding that dowels were omitted by the direction and authorization of the defendant or his superintendent. We have carefully examined the testimony on this point, and, without hesitation, conclude that it was sufficient to be submitted to the jury. If the jury accepted Dotts’ version of the conversation between young Steven and Maddox, relative to this question, they might reasonably infer that the language used by Steven warranted Maddox in construing it as a direction or authorization to dispense with dowels. Certainly, after Steven and Maddox had admitted having a conversation at the time claimed, and had testified in reference thereto in an equivocal and more or less contradictory manner, it was for the jury, and not the court, to determine just what Steven said and *334what he meant by it. The fact that dowels were omitted immediately following said conversation was also a pertinent fact to be considered by the jury if they should find that such omission-occurred. Moreover, this question was' submitted to the jury under a prayer drawn by the defendant’s counsel. In ásking the court to submit this very question to the jury, the defendant cannot now be heard to say that there was no evidence to warrant such a submission.

We come now to the real question in the case, which is whether the omission of dowels in the piece of coping that fell was the proximate cause of the accident. It is contended by appellant that the proximate cause of the accident was the negligence of Dotts in attempting to climb from the top of this stone to the cornice below. ' Appellee, on the other hand, insists, and the jury by its verdict has so found, that the presence of dowels would have prevented the stone from- slipping; that it was known to appellant’s superintendent, and therefore to appellant, that Dotts’ duties required him to walk and sit upon newly set Coping, and that, even assuming the negligence of Dotts, the negligence of appellant was one proximate cause of the accident.

The question has so many times been considered by the Supreme Court of the United States that it is only necessary for us to examine the opinions of that court and apply the rule there announced to the facts of this case. In Grand Trunk R. Co. v. Cummings, 106 U. S. 700, 27 L. ed. 266, 1 Sup. Ct. Rep. 493, it was held that the negligence of a fellow servant did not prevent a recovery, if the negligence of the defendant had a share in producing the injury complained of.

Gila Valley G. & N. R. Co. v. Lyon, 203 U. S. 465, 51 L. ed. 276, 27 Sup. Ct. Rep. 145, was a suit for the negligent killing of the plaintiff’s intestate by the railroad company. The decedent was a brakeman, and, owing to the orders of his coteductor, two cars were negligently run upon a trestle whereon the track ended. Owing to this negligence, as the company contended, the buffer at the end of the trestle was knocked away and the cars precipitated to the bottom of the canon below, *335killing the brakeman. The company asked the court to take the case from the "jury on the ground that the cause of the accident was the gross negligence of the conductor in ordering the cars to be detached from the train and engine, and that such negligence, being that of a fellow servant, precluded the right of recovery. The court said: “The rule would seem to be that, if the negligence of the company had a share in causing the injury to the deceased, the company' was liable, notwithstanding the negligence of a fellow servant contributed to the happening of the accident.”

' In Kreigh v. Westinghouse, C. K. & Co. 214 U. S. 249, 53 L. ed. 984, 29 Sup. Ct. Rep. 619, an employee of the defendant was injured by being knocked off a staging by a heavy bucket attached to- the end of the boom of a derrick, which bucket had been swung outward by a push of a fellow servant operating it. The court said: “If the negligence of the master in failing to provide and maintain a safe place to work contributed to the injury received by the plaintiff the master would be liable, notwithstánding the concurring negligence of those performing the work.”

In District of Columbia v. Dempsey, 13 App. D. C. 533, it was held that where a broken telephone wire, which was negligently allowed to remain for several months suspended from a tree overhanging the street, was, by the act of a third person, fastened to an adjacent tree so as to form a loop, in which the plaintiff was caught and injured, recovery could not be defeated because of the contributory negligence of the third party.

In the instant case the evidence, we think, fully warrants the finding that the accident would not have occurred but for the failure of Maddox, under the direction and authorization of appellee’s superintendent, to use dowels in setting the piece of coping that fell. In speaking of the liability of this piece of coping to lateral movement (assuming the absence of dowels) appellant’s counsel, in their brief, say: “That bed of cement rendered the piece of coping slippery and insecure so that the slightest effort would cause it to slide.” The decedent had the right to assume that he would be subjected to no unnecessary *336dangers. He had the right to assume that the requirements of the specifications would be fully met by the appellant in so far, at least, as those requirements were reasonable and conducive to his safety. Under the finding of the jury it is apparent that, when appellant’s superintendent authorized the laying of this coping without dowels, he knew, or should have known, that they were necessary to the safety of those below. He knew, or should have known, that, to set a piece of coping in watery cement and without dowels, to use the language of appellant’s counsel, would render it “slippery and insecure so that the slightest effort would cause it to slide.” There is evidence that Dotts, with the knowledge and without the remonstrance of appellant’s superintendent, was in the habit of walking upon the coping, and the evidence is uncontradicted that his duties actually required him to sit upon the last piece laid, in assisting the mason to place the next piece. In the light of all this it would, we think, be both unreasonable and unjust1 to hold that the result of leaving out the dowels could not have been anticipated when the authorization or direction to do so was given. Granting that the accident might not have occurred but for the negligence of Dotts, the fact remains that the dangerous condition of the stone, for which the appellant must be held to have been responsible, concurred with the negligence of Dotts, and that without such concurrence the accident would not have happened. Under the rule announced by the Supreme Court, this being one of the proximate causes of the accident, a recovery is justified.

We have carefully examined the cases most relied upon by appellant on this point: Goodlander Mill Co. v. Standard Oil Co. 27 L.R.A. 583, 11 C. C. A. 253, 24 U. S. App. 7, 63 Fed. 405; Cole v. German Sav. & L. Soc. 63 L.R.A. 416, 59 C. C. A. 593, 124 Fed. 113, and American Bridge Co. v. Seeds, 11 L.R.A. (N.S.) 1041, 75 C. C. A. 407, 144 Fed. 609. In each of those cases the court found that the alleged act of negligence would not have produced the injury but for the interposition of an independent cause which could not have been reasonably anticipated, and hence that the intervening cause *337became the only proximate cause. In this case we have ruled that the result of the omission of the dowels might have been reasonably anticipated. This ruling distinguishes the present case from those cited. The safety of those working below demanded the use of dowels. The jury has found that they were dispensed with at the suggestion of the defendant through his superintendent. The defendant was therefore responsible for the unsafe or dangerous condition thereby produced. Where a situation pregnant with danger is produced by the master, pub1 lie policy demands that he be not relieved from the consequences .of that situation, unless it clearly appears that there was no connection between the negligent act of the third person and his own negligence. Here Dotts was engaged in the line of his duty, and while he may have been negligent in attempting to do what he had done before, namely, in attempting to get from the coping to the cornice, the accident Could not have occurred but.for the dangerous condition produced by appellant. When the dislodged piece of coping was laid, it was known thát another would follow, and that in laying this other piece it would be necessary to work over and about the piece that fell. We think, therefore, that the negligence of appellant concurred with the negligence of Dotts in the result, and hence that appellant’s negligence was a proximate cause of such result.

One point remains. The suit was originally brought against James Steven and James Steven, Jr., doing business as James Steven & Company. In the amended declaration, however, the suit was discontinued as to James Steven, Jr., and from that time he was not considered a party to the suit, as the pleadings fully show. ’ When judgment was entered upon the verdict, presumably through some oversight of the clerk, James Steven, Jr.,was included therein. Appellee agrees with appellant that this mistake should be corrected. The judgment will therefore be modified so as to include only James Steven, and, as modified, will be affirmed, with costs. Affirmed.