J.E. Smith Co. v. Smick

• Decision Date: 14 January 1913
• Citation: 86 A. 500,119 Md. 279
• Parties: J. E. SMITH CO. v. SMICK.
• Court: Maryland Court of Appeals

86 A. 500

119 Md. 279

J. E. SMITH CO. v. SMICK.

Court of Appeals of Maryland

January 14, 1913

Appeal from Baltimore Court of Common Pleas; Henry Duffy, Judge.

Action by Edwin Smick, by his next friend Henry Smick, against the J. E. Smith Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS PATTISON, and STOCKBRIDGE, JJ.

Robert R. Carman and Walter L. Clark, both of Baltimore, for appellant. James J. Lindsay, of Towson, for appellee.

BRISCOE J.

The plaintiff brought this action against the defendant to recover damages for personal injuries received while working in the defendant's paper box factory as an employé of the defendant. The defendant is a corporation, engaged in the manufacture of paper boxes and fiber shipping cases, and operates a plant for this purpose in the city of Baltimore. The plaintiff is an infant, and at the time of the alleged injury was on or about 16 years of age. He was employed at the time as a machine hand, or job printing press feeder, by the defendant corporation. The case was tried in the court of common pleas of Baltimore city upon an amended declaration which contains two counts, and from a judgment in favor of the plaintiff for $3,000 and costs the defendant brings this appeal.

The record presents five bills of exceptions reserved by the defendant in the course of the trial. Four of these relate to the rulings of the court upon evidence, and the fifth to its rulings upon the prayers. The declaration contained two counts, alleging the cause of action upon which the plaintiff relied to recover in this suit.

The first count of the declaration avers, after stating the usual introductory averments, that the defendant did not furnish and provide the plaintiff with a reasonable, safe, and proper place, and machine in which to do and perform the work required of him, and did expose him to unnecessary risk or danger while so employed, in that the defendant assigned the plaintiff to work on a large job press machine into which the plaintiff had to feed with his right hand paper or fiber material for the purpose of printing names or designs, and the plaintiff was compelled to remove with his left hand from the machine the paper and fiber as rapidly and as quickly as the same were stamped or printed thereon; that the machine or press on which the plaintiff was working was not protected by any shield or warning, and, while the plaintiff was at work on a small job press machine that he had been accustomed to work on, the defendant directed him to leave this machine and go to work on a machine of a much larger and different style from the one he had been accustomed to work on, in the use of which he had no experience, and for the work he had no instructions, and while working on the large machine or press in the exercise of due and ordinary care his right hand was caught in the machine, and thereby seriously and permanently injured, and that the injuries were caused directly by the negligence and want of care on the part of the defendant corporation.

The second count is the same as the first, except it avers that the work was a hidden danger not appreciable to an ordinary untrained observer, which was not and could not by the exercise of ordinary care have been known to the plaintiff; that the defendant assigned him to work on a larger and different machine, not protected by any shield or warning that the same was dangerous; that the plaintiff had no notice of the hidden dangers, and was directed to work another machine, of a much larger and different style than he had been accustomed to work on.

Assuming that the declaration in this case states a good cause of action, it is clear there is a manifest variance between the allegations of the declaration and the facts proven at the trial and set out in the record to sustain the plaintiff's theory of the case as made by the pleadings.

The burden of proof was upon the plaintiff to show that the injury was caused by the negligence of the defendant as alleged in the pleadings, and the defendant had the undoubted right to have the jury confined to the issue as made by the pleadings. City Passenger Ry. Co. v. Nugent, 86 Md 360, 38 A. 779; Fletcher v. Dixon, 107 Md. 420, 68 A. 875; Darby Co. v. Hoffberger, 111 Md. 86, 73 A. 565. In Balto. Elevator Co. v. Neal, 65 Md. 457, 5 A. 338, it is said it is a principle of universal application in actions at law that it is not upon the evidence alone, but upon the pleadings and the evidence applicable to the pleadings, that a plaintiff can recover in any case.

Mr Chitty in his work on Pleading (1 Chitty, Pleading, 249) says that the plaintiff cannot in order to sustain a single demand rely upon two or more distinct grounds or matters, each of which independently of the other amounts to a good cause of action in respect of such demand. This is the undoubted rule which has been recognized and adopted in this country and in England. Cantril v. Egerton, L. R. 2 C. P. 371; Harford County v. Wise, 75 Md. 38, 23 A. 65; Darby Co. v. Hoffberger, 111 Md. 86, 73 A. 565. In the declaration in the case at bar...