O'Donnell v. Sargent & Co.

Andrews, C. J. The appeal is properly here. The only [483] error assigned is that the court erred in overruling the defendant’s demurrer to the complaint. At the common law, upon the overruling of a demurrer to a complaint judgment in chief went against the defendant. 1 Swift’s Dig. (side page) 639; 1 Chitty on Pl. 701. In such a case, very clearly, a writ of error would lie from the judgment on the demurrer. According to our present practice an appeal will lie wherever a writ of error could be sustained. Our statutes, § 1014, allows a defendant, after the overruling of a demurrer, to plead over if he desires to do so. In this case the defendant declined to plead over and final judgment was rendered against it. But the refusal to plead did not take away the right to claim error in the ruling on the demurrer. There is no error in the ruling-of the Superior Court, unless the complaint is so defective that under its averments a valid judgment in favor of the plaintiff could not be proved consistently with the rules governing the admission of evidence. The defendant’s assignment of error assumes, as also its argument contends, that the complaint is defective and insufficient to that extent. It is not very difficult to test this. Suppose the complaint, just as it is, to be denied, could a good cause of action be proved ? Evidence to prove all the facts put in issue would be admissible ; also to prove all relevant facts, and all facts necessary to introduce or explain the facts in issue, or the relevant facts. It would then be competent to prove under the averments in the complaint, that the plaintiff was in the employ of the defendant on the day named; that he had been so employed for some time previous to that day; that a part of his employment was to oil the shafting as set forth; that the ladder he had used for that purpose, at all times previous to that day, had been supplied with spikes or prods at its lower end so as to prevent its slipping; that “ the agents, servants and employees of the defendant and the defendant had carelessly and wantonly removed, broken, cut off and taken away the spikes and prods which had formerly beén in the lower end of said ladder; ” and that this had been done since the plaintiff had last used the said ladder, and without giving him any notice [484] of such removal—because it is alleged that the plaintiff was without fault or negligence on his part—and that by reason of such removal the ladder slipped and plaintiff fell and was injured. These facts would establish a good cause of action in favor of the plaintiff. If the defendant itself removed the prods, it was in duty bound to notify the plaintiff of that fact; and without such notice he was justified in believing that the ladder was in the same condition as when he had last used it. He had no occasion to examine it that morning before he went up on it to oil the machinery. An employer is bound to furnish his servant with a reasonably safe place in which to do his work. He is bound to provide tools and appliances which are free from secret defects. If he does this he is not liable to the servant. If he does not do this, or if he does not point out the defects, and injury ensue to the servant, then the employer is liable; and much more so if the employer has himself created the danger which causes the injury. There is no error. In this opinion the other judges concurred.