216 F. 316 | 8th Cir. | 1914
The defendant in error, who will be referred to as the plaintiff, sued the plaintiff- in error, who will be referred to as the defendant, to recover damages for injuries sustained by him, while in the employ of the defendant, by reason of the failure of the defendant to exercise reasonable diligence in furnishing him a reasonably safe place in which to work.
The defendant filed an answer containing a general denial, and in addition thereto pleaded: (1) Contributory negligence; (2) assumption of risk; and (3) that the injuries were caused by the negligence of a fellow servant.
The first Congress of the United States, when it enacted the first judiciary act in 1789, recognized this evil and sought to remedy it. Section 32, Act Sept. 24, 1789, c. 20, 1 Stat. 91, digested as section 954, R. S. (U. S. Comp. St. 1901, p. 696). This section provides:
“No summons, writ, declaration, return, process, judgment, or otlier proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect, or want of form, except those which, in cases of demurrer, the party demurring specially sets down, together with his demurrer, as the cause thereof; and such court shall amend every such defect and want of form, other than those which the party demurring so expresses; and may at any time permit either of the parties to amend any defect in the process or pleadings upon such conditions as it shall in its discretion and by its rules, prescribe.”
In Bell v. Railroad Co., 4 Wall. 598, 18 L. Ed. 338, it was held that by a plea to the merits, and the parties going to a trial, all antecedent irregularities are waived.
In Oregon R. R. & Navigation Co. v. Dumas, 181 Fed. 781, 104 C. C. A. 641, it was held that “a demurrer to a complaint for want of facts is waived by an answer to the merits.”
There are a number of assignments of error, but counsel in their brief and oral argument rely solely on the insufficiency of the evidence for submission to .the jury. Counsel in their brief say:
“The sole question presented for the determination of this court is whether under the pleadings and the evidence in the case, the court committed error in refusing to sustain the demurrer to the evidence, and in refusing to give the peremptory instruction requested by the defendant at the close of the entire case.”
In Derham v. Donohue, 155 Fed. 385, 83 C. C. A. 657, 12 Ann. Cas. 372, this court held that under the statute of jeofails (section 954, R. S.) where the defendant could not have been misled in his preparation for trial, it is the duty of the court to permit an amendment, if necessary. As stated in Reynolds v. Stockton, 140 U. S. 254, 266, 11 Sup. Ct. 773, 35 L. Ed. 464, in speaking of a case in which, while the matter was not, in fact, put in issue by the pleadings, but evidence had been introduced by both parties, and the matter actually litigated:
“In such a ease tbe proposition so often affirmed, that that is to be considered as done which ought to have been dono, may have weight, and the amendment which ought to have boon made to conform the pleadings to the evidence may be treated as having been made.”
And this rule prevails in the courts of Kansas. Wilkins v. Tourtellott, 29 Kan. 514; Organ Co. v. Easley, 40 Kan. 521, 20 Pac. 228; Excelsior Mfg. Co. v. Boyle, 46 Kan. 202, 26 Pac. 408.
It is next claimed that the evidence shows that the cover was removed and left off by a fellow servant. The witness McCormick testified that the boards were removed by one Copenhauer, a fellow servant of the plaintiff. But Copenhauer, who was also a witness for the defendant, on his direct examination, positively denied this. Besides, that question was not submitted to the jury. The court held that on that ground the plaintiff could not recover, and submitted the case alone on the question whether the top of this box came off through the operation of the mill and from the manner in which it was operated. There was substantial evidence that when the trough would fill up with the dust, unless it was cleaned out, it would force the boards, which were lying loose on the top of the trough, off, and that by reason of the accumulation of dust and the dim light in the room the fact that the top was off would not be noticed by one engaged in work as was the plaintiff. It also appears that the top could have been placed on hinges and properly fastened so that it would not be forced off by the dust.