133 P. 677 | Mont. | 1913
delivered the opinion of the court.
The plaintiff was employed by the defendant company as a stationary engineer, and while in the discharge of his duties was injured. He brought this action to recover damages. In his complaint he describes somewhat minutely certain working parts of the engine, and alleges that a bracket which supported a valve-rod, on the end of which rod was a clutch designed to engage and raise the dash-pot rod, had been broken; that it had been repaired and kept in use until it became loose, rickety, unstable and failed properly to perform its function, with the result that the valve-rod and clutch, no longer kept in place, also failed to perform their duties; that this defect in the bracket was known to the defendant company, or should have been known to it, but that such defect was latent, unknown to the plaintiff and undiscoverable in the exercise of ordinary care while the engine was running; that there was a tension spring attached to the clutch for the purpose of regulating the contact of the clutch with the dash-pot rod; that on August 5, 1908, when plaintiff went to work, he was informed by the defendant’s foreman, who was then in charge of the engine, that the machinery was in proper working condition, except, perhaps, that the tension spring was loose ; that this information was false and misleading but believed by the plaintiff to be true, and was relied upon by him; that when the clutch failed to attach to the dash-pot rod, he, relying upon the information given him by the foreman, undertook to tighten the spring while the engine was running, with the result that his hand was caught in the machinery and cut and injured, and that
1. We are unable to agree with counsel for appellant in their analysis of the complaint. In the statement above we have fairly
Counsel for appellant err in construing an allegation of knowledge at the time the complaint was prepared into an admission of knowledge at the time the injury occurred. A careful reading of the complaint makes clear the plaintiff’s meaning.
2. Over the objection of defendant, evidence was introduced
In support of their contention that error was committed, counsel for appellant cite Limberg v. Glenwood Lumber Co., 127 Cal. 598, 49 L. R. A. 33, 60 Pac. 176. That case was decided
In 3 Bailey on Personal Injuries, second edition, section 782, page 2101, it is said: “So the fact that a defective appliance was repaired after an accident may be shown upon the question of what was broken, and how, and what was wanting, although improper for the purpose of showing the employer was negligent in not making repairs and alterations before the accident.”
When the evidence was offered, counsel for plaintiff announced: “This is for the purpose of showing that the bracket
3. Complaint is made that counsel for defendant were re-
5. Plaintiff’s situation was not materially different from what
The other alleged errors do not demand separate consideration. The judgment and order are affirmed.
Affirmed.