Liddell v. Fisher

Gill, J. Plaintiff was employed by defendants in their work of sinking a coal shaft at Randolph, Clay county, Missouri. While thus engaged, along with other employes, and when the shaft was down about thirty-five feet, a heavy piece of timber was allowed to fall into the excavation and upon the plaintiff, doing him serious personal injury. Plaintiff brought this action for damages, alleging in his petition that “the [453] defendants carelessly, negligently and wilfully directed, ordered and caused a heavy piece of timber, being twelve feet in length and eight by ten inches thick, to be rapidly and forcibly pushed and slid into said shaft where said plaintiff was at work, and upon and against said plaintiff, without fault of his,” etc. The answer was a general denial coupled with the ordinary plea of contributory negligence. The evidence for the plaintiff tended to establish the negligence complained of, but there was no evidence that the damage was wilfully committed. The instructions of the court submitted the case to the jury alone on the question of negligence, entirely ignoring the charge of wilfulness. Plaintiff had a verdict and judgment for $2,000, and defendants appealed. I. The first objection is stated: “That there was a fatal variance between the petition and the evidence, between the case made in the petition and the instructions given.” It is claimed “that the petition makes a case of injuries arising from the wilful orders and directions of the defendants, while the instructions confine the case to carelessness and negligence.” There are several reasons why defendants can have no advantage from this attack on the judgment. In the first place the variance will be deemed immaterial, since defendants did not show by affidavit that the supposed variance had actually misled them to their prejudice in maintaining their defense upon' the merits. R; S. 1889, sec. 2096. In the second place the evidence alleged to have been at cross-purpose with the petition was not objected to, when offered. In the third place both parties treated the petition as a good one on the ground of negligence, and in bringing forward the proof for both sides entirely ignored the allegation of wilfulness. The word “wilful” was treated as mere surplusage. And, in the fourth place, defendants must be here considered as submitting to the correctness of the instructions given (and these submitted the case [454] wholly on the charge of negligence), because in their motion for a new trial they failed to call the trial court’s attention to .any supposed error in such instructions. And, lastly, we will say that the contents of the petition are not fairly stated, when it is said to be based on the charge alone of wilful injury. It is alleged in the petition “that the defendants carelessly, negligently and wilfully directed, ordered and caused.” etc. At most this was a declaration in one count of both negligence and wilful commission of a wrong. If then there was a statement of two separate and distinct causes all in one count defendants should have requested the court at the proper time to require plaintiff to elect. What is said above disposes, too, of the second and third points of defendant’s brief. And as to the fourth point, to-wit, that the evidence showed unmistakably contributory negligence on the part of the plaintiff, we dispose of it by saying that the evidence in that direction was conflicting, and since the jury has decided the point against the defendants we will not disturb such finding. As to the last objection presented in defendant’s brief, to-wit, alleged error in permitting plaintiff to testify as to the customary manner of letting down timbers into a coal shaft, it is sufficient to say that no sufficient objection was made to the introduction of such evidence, and, hence, no complaint will now be heard on that account. Judgment affirmed. All concur.