Baer v. Baird Machine Co.

Prentice, J. The court denied motions made by the defendant in arrest of judgment, for a direction of verdict in favor of the defendant, and that the verdict rendered be set aside as being contrary to the evidence. The action of the court in each of these particulars is assigned as error, as is also its failure to give the jury certain instructions. The motion in arrest of judgment was properly denied. The complaint is one which could not be attacked successfully after verdict, even if it would not have stood the test of a demurrer. In Wall v. Toomey, 52 Conn. 35, 39, we queried whether under our Practice Act one may take advantage of demurrable defects in a complaint by a motion in arrest, as he might under the common-law system. The question was left unanswered with the statement that, whatever might be that answer, it was at least true that under our system the operation of a verdict in curing defects not demurred to ought to be extended rather than restricted. See also Bennett v. Lathrop, 71 Conn. 613, 616, 42 Atl. 634; Trowbridge v. True, 52 Conn. 190, 199. In the present case it requires no extension of the common-law principle of aider by verdict to remove this complaint from all danger from attack through a motion in arrest. Dale v. Dean, 16 Conn. 579, 586 et seq.; State v. Keena, 63 id. 329, 331, 28 Atl. 522; Will’s Gould on Pleading, 155. There was no error in the refusal to set aside the verdict. It imports that the jury must have found that the defendant was negligent in the premises in respect to a *273 matter which was a proximate cause of the injury to the plaintiff. It is clear that there was evidence upon which this conclusion could have been reached by the jury as reasonable men. Defendant’s counsel concedes this. By this conclusion the jury found that the hazard to which the plaintiff was exposed was something more than that which was inherent in the business in which he was employed. Whatever such inherent danger may have been, it was enhanced by the defendant’s misconduct, which imported into the situation a new factor of peril resulting from its negligence. Translated into the commonly accepted terms of the law, this meant that the danger which the plaintiff was called upon to face was not merely the ordinary risk of his employment, but an extraordinary risk, as the law uses that term. The word “extraordinary” is not used in this connection to denote magnitude or as a mark of degree, but to indicate that the risk is one which lies outside of the sphere of the normal. As applied to the risk of a servant in his employment, it becomes transformed from ordinary into extraordinary whenever, among other conditions, the master’s negligence in respect to his duty as master contributes an added hazard to the situation in which the servant is placed. Girard v. Grosvenordale Co., 82 Conn. 271, 275, 73 Atl. 747. It follows that the risk to which the plaintiff was exposed in the operation of the machine which injured him was not within the scope of his contract of sendee or assumed by him by the mere fact of his employment. Girard v. Grosvenordale Co., 82 Conn. 271, 275, 73 Atl, 747; Worden v. Gore-Meenan Co., 83 Conn. 642, 78 Atl. 422. The risk being an extraordinary one, there would be no assumption of it unless the plaintiff voluntarily continued in his service upon the machine after that risk was known to and comprehended by him. Arnold v. Connecticut Co., 83 Conn. 97, 100, 75 Atl. 78; Worden *274 v. Gore-Meenan Co., 83 Conn. 642, 78 Atl. 422; Elie v. Cowles & Co., 82 Conn. 236, 239, 75 Atl. 258; Girard v. Grosvenordale Co., 82 Conn. 271, 275, 73 Atl. 747. A determination of the question whether there was such an assumption involves two distinct inquiries of fact, to wit: did the plaintiff have knowledge and comprehension of the peril to which he was exposed, and did he, having such knowledge and comprehension, continue of his own volition in the work which subjected him to that peril. The inquiry as to the plaintiff’s knowledge and comprehension of the risk was one which under the circumstances of the case involved a variety of considerations. Its answer would depend upon the conclusion to be drawn from a variety of circumstances disclosed in evidence, including his age, his intelligence, his experience, general and special, his familiarity with machinery, with the machine in question or similar machines, and with equipment such as was in use, the nature and obviousness of the danger, and the extent of information which may have been conveyed to him by others. Doubtless a jury could not, upon the evidence touching the pertinent matters, reasonably have said that the plaintiff did not know that there was an element of danger in the operation of such a machine as was his lathe, and that there was danger of some sort in the rapidly revolving screw head. But that would not be enough to impute to him a comprehension of the full scope of that danger, or of the peculiar danger which led to his injury. As to the extent of his appreciation of the danger which threatened him, the evidence was such that the jury, as reasonable triers, might have come to the conclusion that he did not comprehend the risk to which he was exposed, or at least that feature of it from which he was made to suffer. We do not understand that the defendant questions that the jury reasonably might have reached the conclu *275 sion that the plaintiff was free from contributory negligence. Such a claim, if made, could not be supported for reasons which, taken in connection with what has been said concerning the plaintiff’s knowledge and appreciation of the danger, are too palpable to call for detailed consideration. The complaints made of the charge are to the effect that in one or two respects it should have been elaborated by introducing certain explanatory or cautionary statements, which were not in terms embodied in it. No request touching any of these matters was made. The extent of the court’s duty was to give such instructions as were correct in law, adapted to the issues, and sufficient for the guidance of the jury in the case. Soper v. Tyler, 73 Conn. 660, 662, 49 Atl. 18. This duty was performed. It is not error to give instructions which are not ideally perfect, or not proof against suggestions of even helpful or informing additions. There is no error. In this opinion the other judges concurred.