Simeoli v. Derby Rubber Co. , 81 Conn. 423 ( 1908 )

In his appeal to this court the defendant claimed that the superintendent's orders to the plaintiff to "put in another shovelful of powder", and "not to pick it (the rubber dough) up in pieces," but to "take it up altogether and shove it in," were the real cause of the accident, and that these acts of negligence were not alleged in the complaint, and were therefore erroneously made the basis of the judgment for substantial damages.

The complaint states a good cause of action, and properly describes several acts of defendant's negligence as the causes of the plaintiff's injury. All of them having been proved, the fact that several others were also established without objection, ought not to defeat the plaintiff's recovery.

But proof that these two orders were given, is not variant from the averments of the complaint that the superintendent ordered the plaintiff "to hurry and feed faster," and directed him to work upon this machine. The plaintiff was not required to state in his complaint the precise words by which he was directed to work on this roller. The complaint contains a sufficient averment that he was so directed, and a sufficient description of the acts of negligence proved, to sustain the judgment rendered upon a hearing in damages after a default. Anderson v.United States Rubber Co., 78 Conn. 48, 52, 60 A. 1057.

The complaint contains a direct allegation that the plaintiff's injury was caused by the defendant's negligence. A separate averment that the negligence of the plaintiff did not contribute to the injury, or that he was in the exercise of due care, was therefore unnecessary. Brockett v.Fair Haven W. R. Co., 73 Conn. 428, 433, 47 A. 763.

It is contended that the complaint is insufficient because it fails to aver that the plaintiff did not have equal means of knowledge with the defendant, of the alleged unsafe conditions, and O'Keefe v. NationalFolding Box Paper Co., 66 Conn. 38, 33 A. 587, is cited as sustaining this claim. In that case the complaint alleged that the plaintiff was negligently put to work in placing colored paper saturated with poison in a box greatly heated with steam. It was held, upon demurrer, that the facts alleged failed to sustain the averment that the defendant was bound to know of the presence of the poison, and that, so far as appeared, the plaintiff's means of knowing it were as good as the defendant's. In the case before us it appears sufficiently clear from the averments of the complaint that the defendant knew of the unsafe conditions described, and of the plaintiff's inexperience, and that the boy, seventeen years old, who had worked on the machine but a few days and that without adequate instructions, had not the knowledge or means of knowledge possessed by the defendant, of the danger of the work which he was directed to perform.

Assuming that the defendant might upon the hearing in damages have availed itself of a legal discharge from all liability, the trial court properly treated the release presented in evidence by the defendant as invalid. The infancy of the plaintiff, his ignorance of the English language, and the circumstances under which the release was procured, were sufficient reasons for setting it aside. As it was presented upon a hearing in damages, the plaintiff was not required to plead its invalidity, and as the payments by the defendant of plaintiff's wages and a part of his hospital bills are found to have been voluntary and not made under any agreement of settlement, it was not necessary to make the return of the sum so paid a condition to the annulment of the discharge.

The defendant was not prejudiced by the exclusion of the question asked the plaintiff's father on cross-examination, whether he did not understand that if Mr. Askam paid certain bills and did certain things, that would settle the case, since the witness afterward answered practically the same question. Whether the next question, "What did you suppose he was doing this for?" should have been allowed, was so far a matter of discretion with the trial court in determining the proper limits of cross-examination, that its exclusion is not a sufficient ground for a new trial. Other assignments of errors in rulings upon questions of evidence, not pursued in defendant's brief, are not noticed.

We discover no ground for the claim that the trial court did not apply the proper tests of negligence in holding, upon the facts found, that the defendant failed to sustain the burden imposed upon it by the default, of either disproving the negligence with which it was charged or of proving contributory negligence upon the part of the plaintiff.

There is no error.

In this opinion the other judges concurred.