Pérez v. Guánica Centrale

Mr. Justice Audrey delivered the opinion of the court. The complaint in this case was filed in the District Court óf Ponce on February 19, 1909, and alleged substantially that on October 9, 1908, the defendant corporation owned certain buildings and houses situated on the square of said central, and that the plaintiff, Castro Pérez, 19 years of age, was employed by the central as assistant mechanic, it .being his duty to assist in making repairs at such places as the defendant or it employes might direct; that on said 9th day of October he received orders to assist a mechanic in boring holes in some sheet iron placed on the roof of one of said houses, and that while discharging his duty with due zeal and diligence he stood with the necessary care on one of the sheets of iron which formed part of the roof of said house and fell to the ground together with the sheet, which gave way and fell because of the negligence, carelessness and remissness of the defendant, and that in consequence of his fall his left forearm was fractured and that he suffered great physical pain, the direct cause of the accident being the negligence of the defendant; that the plaintiff notified the defendant in. writing of the accident within the time specified by law, and that he had suffered damages to the amount of $999, which — 930 — sum life pfays that the defendant corporation be adjudged to pay him as indemnity, and also that the costs be taxed against the defendant. The plaintiff demurred to the answer filed by the defendant and the trial court overruled the demurrer, consequently the trial was proceeded with and the court rendered judgment on March 7, 1910, declaring that the law and the facts were in favor of the defendant, and dismissed the complaint with costs. The plaintiff appealed and filed in this court a transcript of the record and a brief, but the defendant did not appear at that time. The errors alleged as grounds of the appeal are four, namely: (a) That the trial court erred in overruling the demurrer filed by the plaintiff to the answer of the defendant. (b) That it erred in refusing to allow certain letters to be introduced by the plaintiff as evidence. (c) That the judgment is contrary to the evidence. (d) That it is also contrary to law. Although the order overruling the demurrer of the plaintiff was not formally excepted to, still we may consider it because the demurrer and the order appear in the transcript of the record, which is equivalent to the inclusion of the former in a bill of exceptions. In orders of this kind it is not indispensable to take formal exception to them because they are of those which are considered excepted to by operation of law in accordance with section 213 of the Code of Civil Procedure. This being established, we may examine the first ground of the appeal, which is that the demurrer to the answer was erroneously overruled. The demurrer was based on four grounds, to wit: 1. That the answer of the defendant corporation did not state facts sufficient to constitute a defense. 2. That the answer is ambiguous, unintelligible, and eya931 sive because the defendant necessarily must have had knowledge of the manner in which the accident occurred inasmuch as it took place on the square of the Guánica Céntrale, and because it also must have had knowledge of the written notice of the accident given by the plaintiff. 3. That the answer that if Castro Pérez suffered the damages alleged they were caused and were the result of the risks of his employment, which risks he assumed, does not state facts sufficient to constitute a defense. 4. That neither do the defenses based on the fact that the plaintiff was employed as a mechanic by the defendant, and that if damages were occasioned they were not caused by defects in the ways, works, or machinery of the defendant, which defects appeared not to have been discovered or remedied by the latter, or because of its negligence or that of its employes, but were due to the negligence and lack of care of the defendant only, state facts sufficient to constitute a defense. Knowing the grounds of the demurrer, .let us now see if it was properly or erroneously overruled by the trial court. The answer contains a denial of the manner in which the accident occurred as stated in the complaint; of the fact that it occurred through the fault or negligence of the defendant; and of the fact that the plaintiff proceeded on that occasion with due zeal and diligence in the discharge of his duties. This denial of the essential facts of the complaint constitutes a good defense. The second ground of the demurrer overruled is no ‘better taken than the first. One of the allegations of the complaint recites the manner in which the accident occurred and attributes the direct and immediate cause thereof to the negligence of the defendant. The following one states that the plaintiff notified the defendant in writing of the accident within the time specified by law. Both allegations were denied by the defendant, which — 932 — based its second denial on the lack of the necessary information on which to found belief. . As to tbe first of these allegations, the appellant maintains that the accident having occurred on the square of the Guánica Céntrale the defendant necessarily must have had knowledge thereof; and as to the second, he holds that notification of the accident having been sent by mail, neither can the defendant deny this fact, for which reasons the aforesaid denials render the answer unintelligible, ambiguous, uncertain and evasive. We cannot agree with the plaintiff and appellant in his assertion, that because of the fact that the accident occurred in one of the houses of the defendant the latter necessarily must have knowledge thereof, and that it is estopped from alleging ignorance of the same. There is no law whatever which imposes upon a person or corporation the duty of knowing everything that happens in or about its properties.to the extent that it cannot allege ignorance of such happenings. In regard to the other allegation, that notice of the accident was forwarded by mail, the case is different, because if it is alleged that notice* of the accident, stating the place and the-cause thereof, was forwarded to the defendant corporation by mail, properly stamped and addressed, then that is sufficient to have complied with the requisite of the law, although in reality the notice may not have been received; and this was not an allegation either to be admitted or denied in the answer. But, moreover, when an answer contains any good defense, as in this case, a general demurrer to the whole answer cannot be sustained. The question in regard to the allegation as to the notice- and the defendant’s response thereto is not important in this case, because the complaint was filed within six months after the date of the accident on account of which the claim is made. It was unnecessary to allege such notice because it is required — 933 — only when the claim is made after said period, and, moreover, the plaintiff being under age he had, in accordance with section 40 of the Code of Civil Procedure, np to six months after attaining his majority in which to file his suit.. The appellant himself acknowledges that the notice was unnecessary.. Having decided the first two grounds of the demurrer which attacked the complaint in general, and holding that the trial court valued them properly, it becomes unnecessary to examine the.other two grounds which attack the defenses alleged by the defendant, because if after omitting these the answer was sufficient (and we so understand it to be) although the defenses were bad and improper, the demurrer of the plaintiff could not for that reason prosper, and at most what he would be entitled to would be the striking out of such defenses from the answer. In short, as to the first error assigned, the demurrer to the answer was properly overruled by the trial court, and the error alleged does not exist. The second error assigned by the appellant is based, as already stated, upon the exclusion by the court of certain letters which he desired to introduce as evidence. We must first state that the contents of said letters have not been included in any bill of exceptions, as is necessary, so that having a knowledge thereof we might reach an exact conclusion with respect to their admissibility at the trial. As this was not done we must presume that the trial court ruled correctly on this point. But if we may deduce from the answers of the witnesses and from the statements of counsel for the plaintiff that one of those letters referred to proposals for settlement made by the defendant and the other to the notice of the accident given to the defendant, we shall also reach the conclusion that they were properly excluded by the court below, and for this reason no error was committed because the fact that a litigant offers to make a settlement before the trial or during the progress thereof can never in itself be held as — 934 — an acknowledgment of Ms liability, and tlie most that it can imply is that he desires to avoid the snit or its continuation, for which reason such evidence can never he admitted by the courts, as was held in the case of Colomé v. Guánica Centrale (16 P. R. R., 442). As to the other letter relative to the notice or advice of the accident, as already stated, it was not an essential fact because the complaint was filed within six months after the date of the accident and the exclusion thereof did not prejudice the plaintiff. Moreover, apart from these reasons there is a fact common to both letters which rendered them inadmissible, namely, that it was not shown that the person who signed them was a representative of the defendant corporation. We have examined separately the first two errors assigned as grounds for the appeal, but we may consider and shall examine the other two jointly, because of the intimate relation they bear toward each other. The judgment of the trial court dismissed the complaint and the plaintiff now alleges that said judgment was contrary to the evidence. Let us see if the latter supports the allegations of the complaint. The evidence taken at the trial shows that on October 9, 1908, the plaintiff, Castro Pérez, was 19 years of age and that during a few months prior to that date he had been working as an assistant mechanic for the Gruánica Céntrale, a corporation organized under the laws of New Jersey, for a salary of 75 cents a day; that on said day he was ordered to bore holes in certain irons of the roof of one of the houses belonging to the defendant and in order to do so he crawled over a part of said roof, and when about to stand on one of the sheets of iron which form the same he fell to the ground together with said sheet from a height of 30 feet, as a consequence of which fall his. left forearm was fractured and he was prevented from working up to the date of the trial; that the sheet of iron that fell with the defendant was held — 935 — in place by solder on one side only, in which condition it had been left by the carpenter who, the day before, had removed others next to it while making a skylight, the work being visible to all and the plaintiff and his superior having been at the place on the previous day; that from the statements of witness Finch, whose assistant Castro Pérez was, it appears clearly that on the day before the carpenters worked in a visible place on said roof and that the results of their work could be seen; that the carpenters had removed some of the sheets of iron, but not the one from which the plaintiff fell; that it is also evident that other persons passed safely over said sheet of. iron without falling; that no one appeared to have reason to believe that it was dangerous to pass over said sheet, nor that the carpenters were negligent or incompetent, nor employes of the corporation, nor that ■such manner of leaving the sheet of iron was not the usual one. The evidence does not show in what class of business the Gluánica Céntrale is engaged, to what use the house where the accident occurred is destined, nor that its business was to repair roofs, nor that it did a special business in connection with roofs unlike that of any other proprietor of a house. No one advised the plaintiff that said sheet of iron was loose nor was any sign posted to give warning of the defective condition of the roof, nor did the mechanic whom the plaintiff assisted know of the defects of the aforesaid sheet of iron. These being the essential facts brought out by the evidence .introduced at the trial, let us now see if they create any ■liability on the part of the defendant corporation, the owner of the house where the accident occurred. According to the Act of March 1, 1902, relative to the liability of employers, in order that employes may claim indemnity from the former for injuries received in their service, it is an indispensable requisite that when the bodily injuries occurred said employes were exercising due zeal and dilig’ence in their work. — 936 — Although, this point was denied by the defendant corporation, the evidence clearly shows that the plaintiff and appellant did not receive the injury, for which he claims damages, through his own carelessness or negligence, nor has this point been strongly urged by the defendant. But in accordance with the aforesaid law, it is not sufficient that the accident should have occurred without negligence or carelessness on the part of the employe. It is indispensable also that the accident should have originated through one of the three causes specified in section 1 of said act, which is section 322 of ■ the Revised Statutes of Porto Rico, which causes we may briefly state as follows: 1. By reason of any defect in the ways, works, or machinery of-the defendant which arose from or had not been discovered or remedied owing to the negligence of the employer or of his employes. 2. By reason of the negligence of the superintendent of the employer. 3. By reason of the negligence of a railroad employe. Of these three causes the last is not applicable because this was not an accident caused by the negligence of railroad employes. Neither does the second cause apply because, as the law provides, it refers to injuries caused <£by reason of the negligence of any person in the service of the employer entrusted with the exercising of superintendence whose sole or principal duty is that of superintendence,” and there is no allegation in the complaint nor any evidence that any person was entrusted with said work or repairs whose exclusive or principal duty it was to superintend the same. The only-employes who worked with the plaintiff were fellow-workmen. There remains, then, the first cause. It is evident that neither the house nor the roof on which the plaintiff worked when the accident which caused his injury occurred can be classified as ways or' means of communication, because that is not the object to which they are destined. They may, however, be classed as “works,” regardless of what the defendant may say to the contrary — 937 — A house used in the business of a company has always been so considered, as may be seen in volume 8 of the Century Dictionary, page 697, No. 9, and in volume 29 of the American and English Encyclopedia of Law, page 852, and in the jurisprudence established by American courts. In Words and Phrases Judicially Defined, volume 8, page 7524, we find that in the ease of South St. Joseph Land Co. v. Pitt, 114 Mo. 135, this word is defined as follows: “* * * is often used as meaning an establishment for manufacturing or for performing industrial labor of any sort, generally in the plural, including all the buildings, machinery, etc., used in the required operations.” In the case of Conroy v. Inhabitants of Clinton, 158 Mass., 318 (cited in the same work), it is stated that the word “works,” as used in the Statute of 1887, c. 270, clause 1, authorizing actions for the death of employes caused “by reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer,” means completed works and not those in course of construction. The language of this statute is the same as that of ours. The same doctrine was applied in the case of Hanna v. South St. Joseph Land Co., 126 Mo., 1, 13, 28 S. W., 652. The building wherein the accident occurred is, therefore, one of the works of the defendant corporation, but as it has not been shown by the evidence that it was defective in any way nor that the accident was caused, or not discovered, or not remedied, on account of the negligence of the employer or of Ms employes, it is evident'that in accordance with, section 322, paragraph 1, of the Revised Statutes of Porto Rico the plaintiff has no right to recover from the defendant. It is true that, as a general rule, a master is bound to furnish his servant with a reasonably safe place in which to work and should exercise reasonable care in the compliance of this duty, but this rule does not apply when the work which is being done by the servant is^of such a nature that “it is constantly changing in character by their labor, * * * — 938 — when the dangers which arise are very short lived, or when,, by the negligence' 'of the workmen the place is rendered ‘unsafe without the master’s fault or knowledge.” (26 Cyc., 1113.) Moreover, if the fall and injury of the plaintiff were due-to the fact that the sheet of iron with which he fell to the-ground was soldered on one side only and not riveted and that this was a defect, but this has not beeii shown, then neither has it been shown that the employer had knowledge-thereof, and so not even in that case would the defendant, corporation be liable therefor, because a master is not liable-for injuries received by his employes which are caused by hidden defects of which he is ignorant and which he could not discover by using reasonable care. This doctrine is expressed in the case of Mars v. Delaware and Hudson Canal Company, 54 Hun., 625, wherein it is stated that a party is only liable for negligence when he fails to take the necessary measures against such dangers as may be reasonably expected to occur and which could have been avoided by using-ordinary care. In the case of East St. Louis Packing and Provision Company v. Hightower, 92 Ill., 139, it was also laid down that “a, servant can not recover of his employer damages for an injury received while in the discharge of his duty from a defect, in the machinery used without showing that the employe had knowledge, or might have had knowledge, of the defect by the-use of reasonable diligence.” In the case of Smith v. Whittier, 30 Pac. Rep., 532, it is said that “As negligence is the violation or disregard of some duty or obligation which one owes to another, it is evident that a knowledge of the facts out of which the duty springs is an essential element in determining whether there has been any negligence,” and that although in some cases “such knowledge is conclusively presumed * * •* in others it devolves upon the party charging the negligence to show that the knowledge existed.” — 939 — In the case .at bar, skylights were being made in the iron roof of one of the defendant’s buildings, to do which it was. necessary to remove some of the sheets of which it was formed, it being the character of the work and not the bad condition of the roof which caused the plaintiff’s fall. In other words, the sheet of iron fell with the defendant as a consequence of the repairs or work being done on the roof, and when an employe is charged with work of this character, which is constantly changing and successively passing from one condition to another, being often dangerous because of the very nature of the work, the workman assumes the ordinary risks common thereto as well as those which he knows to exist or which he could have known to exist by exercising reasonable care, unless it has been stipulated otherwise. (See 26 Cyc., 1117.) In the case of Schneider v. American Bridge Company, 31 App. Cases, 426, Mr. Justice Shepard expressed himself as follows: "Tested by the principles of the common law, the evidence was insufficient to show actionable negligence committed by the defendant. An immense building was in course of construction. Plaintiff’s special work was at the extreme end of the same, riveting connections with the outer girder. His place of work was upon a scaffold where he appears to have been reasonably safe under the ordinary conditions of his particular labor. It does not appear from the evidence that he or his immediate colaborers were required or expected to walk over the iron framework in order to reach the scaffold provided for them, or to procure tools for the performance of their labor, or that the defendant undertook to lay boards across the beams for the purpose of enabling any of its employes to walk about over the iron framework. How the board came to be lying on the beams, or by whom, or for what purpose, it Was laid there, does not appear. For aught that-appears, the boards mentioned in the evidence may have been brought and laid by some of the workmen engaged in the building, for their' own convenience and of their own motion, or may have been surplus-boards left over from the scaffold construction. ‘The obligation of' a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty', as towards. — 940 — them, of keeping a building which they are employed in erecting in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellows.’ (Armour v. Hahn, 111 U. S., 313, 318, 28 L. ed. 440, 441, 4. Sup. Ct. Rep., 433.) ” In regard to the lack of liability of an employer for accidents which happen when there is no reason to expect them, Judge Cooley in the case of Sjorgren v. Hall, 53 Mich., 274, said: “The plaintiff relies for a recovery upon the negligence of the defendants in leaving the wheel uncovered. It was shown on the trial that at a very small expense a protection could have been constructed by the side of the wheel which would have rendered this accident impossible, and it is contended that the failure to provide this protection was such culpable disregard of the safety of those whom the defendants employed as to make them responsible for all consequences. If the accident which occurred was one at all likely to happen — if it was a probable consequence of a person working about the wheel that he would be caught in it as the plaintiff was — there would be ground for pressing this argument. But the accident cannot be said to be one which even a prudent man would have been likely to anticipate * * *. “The unexpected has happened, and we have only to see whether the defendants were neglecting any duty ■ in not guarding against it * * *. “A similar accident, attended by equally serious consequences, might happen almost anywhere, in any machine shop or on a farm as well as in a mill, and after it had happened it could be readily seen how it might have been avoided. But the fact that it was avoidable does not prove that there was fault in hot anticipating and providing .against it. If a farm laborer falls from the haymow, the fall does not demonstrate that the farmer was culpable for not railing the mow in. A man stumbling in a blacksmith shop might have his hand or even his head thrown under the trip hammer, but it would not follow, that there had been any neglect of duty on the part of the blacksmith in leaving the hammer exposed. So far as there is a duty resting upon -the proprietor in any of these cases, it is a duty to guard against probable dangers; and it does not go to the extent of requiring him to render accidental injuries impossible * * *. The evidence — 941 — sliows a ease of pure accident, with no more negligence on one side than on the other.” And in this case we may say with. Judge Cooley that “The evidence shows a case of pure accident” for which the defendant corporation cannot be held liable. For this reason the judgment of the court below, releasing the defendant from the claim of the plaintiff, Castro Pérez, should be affirmed. Affirmed. Chief Justice Hernández and Justices Wolf and del Toro concurred. Mr. Justice MacLeary stated that he concurred iu the judgment but not in the opinion on which it is based, and delivered a separate concurring opinion.