p. 320not assume the risk of said employment, was not warned of and did not appreciate or understand the dangers attendant upon the performance of the aforesaid work, but relied wholly upon the judgment of the said Bert Flanders in the performance thereof.” The complaint concluded by averring the service of a notice of the time, place and cause of the injury, as provided by the Employers’ Liability Act.
The answer admitted the incorporation of the defendant; that it operated the mill; the employment of the plaintiff; that he was injured, and denied the other allegations of the complaint. The answer also set up the negligence of the plaintiff and that he assumed the dangers and risks of his employment. The court charged the jury that the machinery in the defendant’s mill, the stack of calenders and all appliances furnished the plaintiff for his employment, were in perfect order, and that no negligence on the part of the defendant could be imputed for failure to guard the calenders or stack.
On the trial the plaintiff was permitted to prove that in the operation of the calender electrical currents were generated, by the action of the rollers on the paper, of sufficient force to attract and draw through the rollers pieces of paper, six or eight inches from them and that there were drafts or currents of air which had a tendency to pick up and carry paper through the rollers. This evidence was received under the defendant’s objection and exception. The objection was to the effect that the proof was a departure from the cause of action stated in the complaint.
At the close of the evidence defendant’s counsel moved for a nonsuit on the ground that the plaintiff had failed to show that the omission “ to guard the nip or pinch between the calender rolls, where he was injured, was the proximate cause of his injury.”
The court denied the motion and the defendant excepted.
Henry Purcell, Jr., for the appellant.
Fred A. Baldwin, for the respondent.
The complaint charges a liability based on the provisions of the Employers’ Liability Act. The real claim of the plaintiff, at the
p. 321commencement of the action and as formally made in the complaint, was that proper guards were not placed in front of the calender rollers for the protection of the plaintiff, and, by reason of that defect, the calender was not a safe machine and the place provided for him to work was not safe or proper. Thei'e was no hint in the complaint that any dangers attended the employment of the plaintiff but those incident to the unguarded rollers. The whole cause of action rested upon the alleged negligence of the defendant in failing to properly guard the rollers, and it was an entire change of that cause when this view was ignored by the plaintiff’s counsel and the court at the trial. It is true that the 9th clause of the complaint was amended at the opening of the trial by inserting after the word “ employment ” the words “ was not warned of,” but that did not extend the issue of negligence or authorize a recovery upon a failure to warn the plaintiff of the existence of dangers not referred to or suggested by any allegation of the complaint. The words quoted were apparently added to extend the denial. Having alleged, as a reason why he did not assume the risk, that he “ did not appreciate or understand the dangers attendant upon the performance of the aforesaid work,” it may be reasonably presumed that the clause was amended to exclude the possibility of an inference that the plaintiff knew ór had been informed of the dangers of an unguarded machine. It is clear that they did not make a new issue or change or affect the substantial ground of action.
It is also to be noted that the clause as amended did not contain facts essential to the plaintiff’s cause of action and that the framer of the complaint must have supposed that an assumed risk was a form of contributory negligence, the absence of which must be alleged and proved as a part of the plaintiff’s case. However this may be, it-is wholly unreasonable to interpret the clause as referring to a danger not mentioned or suggested in the complaint.
No one reading the complaint could reasonably infer that the pleader intended to set forth a cause of action arising from a failure to warn the plaintiff of the existence of currents of electricity or drafts of air. It may be further said that the plaintiff might with equal propriety have contended that the complaint contained a
p. 322charge of negligence arising from a failure to warn the plaintiff of the danger of adjusting the rollers or repairing the machinery while in motion, of a hole in the floor, a defect or imperfection in the machine or some other dangerous condition not referred to in the complaint.
As before observed, it was not claimed or suggested that currents of electricity or air were generated or that the defendant was negligent in failing to give the plaintiff proper instruction concerning them. The whole cause of action was predicated upon the omission to guard the rollers. That was the distinct and specific charge of negligence and if, as the court held, the stack of calenders and all appliances furnished the plaintiff for his employment were in perfect order, and negligence could not he imputed for a failure to guard the rollers, it is clear that the court erred in permitting the plaintiff to prove and to recover upon a cause of action not alleged in the complaint.
While the Code is liberal in disregarding technical defects and omissions in pleadings and in allowing amendment, it does not permit a cause of action to be changed, either because the plaintiff fails to prove the facts necessary to sustain it or because he has mistaken the force and effect of the allegations of the complaint. (Degraw v. Elmore, 50 N. Y. 1 ; Ross v. Mather, 51 id. 108 ; Neudecker v. kohlberg, 81 id. 296 ; Day v. Town of New Lots, 107 id. 148 ; Romeyn v. Sickles, 108 id. 650.)
“ The principle still remains that the judgment to be rendered by any court must be secundum allegata et probata / and this rule cannot be departed from without inextricable confusion and uncertainty and mischief in the administration of justice. Parties go to court to try the issues made by the pleadings, and courts have no right impromptu to make new issues for them, on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue, and distinctly and fairly litigated.” (Wright v. Delafield, 25 N. Y. 266 ; Southwick v. First National Bank of Memphis, 84 id. 420; Truesdell v. Bourke, 145 id. 612.)
“ If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, hut rather to ensnare and mislead his adversary.” (Brightson v. Claflin Co., 180 N. Y. 81 .)
p. 323For these reasons, I am of opinion that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
All concurred, except Smith, P. J., dissenting; Kellogg, J., concurred in result.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.