Limerick v. Holdsworth

The plaintiff’s theory of the case was that the tongue or pole of the truck was defective; that it was worm-eaten and affected with dry rot, which a reasonable inspection on. the part of the'master should have discovered and remedied; and that the breaking of this pole was the proximate cause of the accident. He produced two witnesses to testify to the alleged condition of the pole at the time of the accident, and their evidence, if believed, would indicate that the pole was rotted to some extent, and that there were worm holes in it, but the pole was brought into court and displayed, and the learned trial court, in a memorandum handed down, declares that the evidence in support of the alleged defects in the pole was unsatisfactory, and we are clearly of the opinion that, with the evidence of a disinterested witness that the pole was in a proper condition, and that there were no defects which were apparent even after the accident, the verdict cannot- be permitted to stand upon this theory.

And this brings us to the consideration of the question of whether the verdict, predicated upon a theory which does not appear to have been thought of by the plaintiff, or really litigated, can be permitted to stand. The complaint alleges, and no suggestion of an amendment appears, that:

“The foregoing accident was caused solely by reason of the negligence and carelessness of the defendants, their agents and servants, in neglecting-and failing to provide a proper, safe, and suitable truck for the said plaintiff to work with and upon, and in causing, permitting, and allowing the said plaintiff to work with and upon the said truck, well knowing that the same was not proper, safe, or suitable, and in furnishing and providing for the use of

the plaintiff, and in directing him and requiring him to use, a truck which was oí improper and imperfect construction and design, and which was not properly constructed and liable to tip over, and which was defective, worn out, and in a dangerous and unsafe condition for use; and the said defendants were also negligent and careless in failing to notify the plaintiff of any of the said°defects of said truck, and in failing to provide a proper, safe, and suitable place for the plaintiff to work in and upon, and in failing to provide a proper, safe, and suitable truck and appliances for him to work with, and the plaintiff was in no way negligent.”

The allegation is that the accident was caused “solely by reason of the negligence and carelessness of the defendants" in reference to the truck used and its condition, not that the direction of the defendant that the particular casting be placed upon the same in any particular place caused the accident, and the testimony of the plaintiff was all directed to the issue raised by his complaint and the denial of the defendants; the reference to the direction by one of the defendants being purely incidental, and as a part of the res gestae, as it were, of the case. It is true there was no objection or exception interposed to the plaintiff’s testimony upon this point; but it is entirely obvious that there was no occasion for an objection. The issue presented was that there was a defect in the truck, or in the appliances, not that the master had given negligent directions in the loading of the truck; and when the witness, in telling his story, and without any intimation—for it does not appear tó have been thought of by the plaintiff at any stage of the trial—that the issues were to be changed, incidentally referred to the directions given him by one of the defendants, the defendants were not bound to anticipate this change of front, and to offer objections to the narrative, where it had no relation to the negligence alleged as the sole cause of the accident.

It is only in those cases where the issues are fairly and openly presented and contested by common consent, with a full understanding of the change of front, that the court is justified in construing the pleadings as having been amended in conformity with the proof; and there was no effort to have the court amend the pleadings, nor was there anything in the case to give notice to the defendants that the plaintiff intended by this purely incidental testimony to change the entire theory of the law suit. “Parties go to court to try the issues made by the pleadings,” say the court in Wright v. Delafield, 25 N. Y. 266 , 270, “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.” Day v. Town of New Lots, 107 N. Y. 148 , 154-155, 13 N. E. 915 ; Scott v. International Paper Co., 125 App. Div. 318 , 322, 109 N. Y. Supp. 423 , and authorities there cited. The case last above cited is peculiarly in point, although the decision rested upon a question of evidence.

In the case now before us there was no opportunity to object to the testimony, as it .was not offered even by the plaintiff for the purpose which the court afterward made use of in disposing of the case. But, beyond this, there was no evidence in this case to justify a finding that it was negligent on the part of one of these defendants to direct that the casting should be placed in the front of the truck. The direction was not specific that the casting should be placed at any particular

“When the front wheels of a truck are turned in such a manner that the axle is parallel with the length of the truck, then the points of support of the front part of the truck are very narrow. The only stability to that truck then is the base of the hind wheels. The truck practically rests upon the ground at three points, the two hind wheels and the single point in front. It therefore, necessarily follows from that that a heavy load placed on the front of the truck somewhat tends to destroy its equilibrium. If the weight is in the rear of a truck, the equilibrium would be greater; much more difficult to dislodge it.”

The witness had been testifying on direct examination to the causes which led to the breaking of the pole, and this cross-examination was apparently in elaboration of this proposition, without any suggestion that the issue was being changed. There was no evidence whatever that the defendant, who is said to have directed that the casting be placed in the front of the truck, 'had any reason to believe that the front axle would be placed parallel with the length of the truck. Indeed, the testimony was that the purpose of the pole was to guide the truck; that the “front wheels could not change their position without the pole also swinging; it holds the front wheels in their proper relation; the.pole and the front axle are always at right angles; as long as the pole is maintained directly in front, the wheels cannot turn, and the way to turn the wheels is to turn the pole around to one side or the other,” so that if the pole did not break, and the driver did not permit his horses to veer around at right angles with his truck, there would be an entire absence of the only condition of danger suggested even remotely in the evidence. In other words, there was no necessary danger in loading the truck heavy in front. It was only under special conditions, which there was no reason to anticipate, that this particular loading would be dangerous; and every man familiar with teaming knows that it is customary, and in harmony with the economic application of power to the load, to place the greater part of the load over the front axle. The direction said to have been made was not a command to do a particular thing. It was merely in the form of a suggestion that this particular piece should be loaded toward the front, to give room for the other pieces. It was not a matter of judgment, but one of expediency; and there was no evidence that any danger whatever was to be apprehended from placing the load in front, rather than at the rear, for there was nothing in the evidence to show that it was anticipated that the forward wheels would be placed at right angles with the body of the truck, or that there was any reason why any person of ordinary prudence would anticipate such a situation in directing the loading of this truck.

The jury answered three specific questions submitted by the court,

The judgment and order appealed from should be reversed, and a new trial granted; cqsts to abide the event. All concur.