Kent Mfg. Co. v. Zimmerman

• Decision Date: 01 July 1910
• Parties: KENT MFG. CO. v. ZIMMERMAN.
• Court: Colorado Supreme Court

110 P. 187

48 Colo. 388

KENT MFG. CO. v. ZIMMERMAN.

Supreme Court of Colorado

July, 1910

Appeal from District Court, City and County of Denver; Hubert L Shattuck, Judge.

Action by August Zimmerman against the Kent Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wm. E. Hutton, for appellant.

S. A Osborn (Clyde H. Osborn, of counsel), for appellee.

GABBERT J.

Appellee as plaintiff, brought suit against appellant, as defendant, to recover damages for personal injuries claimed to have been sustained through the negligence of defendant. The verdict and judgment was in favor of plaintiff, from which the defendant has appealed.

It is evident from the pleadings and testimony that issues of fact were submitted to the jury for determination which should not have been, and for this reason the judgment of the district court must be reversed and the cause remanded for a new trial. It is also apparent from an inspection of the complaint that the facts upon which the plaintiff relied for a recovery are not clearly stated, and, before another trial, should be so amended as to succinctly charge wherein the defendant was guilty of negligence upon which the plaintiff predicates his cause of action.

In further considering the case we shall limit our decision to those questions which will enable the parties on a retrial to have the case submitted to a jury upon the vital questions involved.

Plaintiff was employed by defendant in operating a duster machine, which was used to clean shoddy. The machine consisted of a cylinder containing rows of teeth arranged longitudinally. The cylinder was inclosed in a casing, with the exception of a portion at the top about 14 inches square, through which the shoddy was fed into the cylinder. There were also two rows of teeth on the inside of the casing, so placed that the cylinder teeth passed between them when the cylinder was in motion. When in operation the cylinder revolved at the rate of about 360 revolutions per minute. The power was conveyed to the machine by means of a belt connecting a pulley on the cylinder shaft with a drive pulley. There was also a loose pulley on the cylinder shaft which would revolve when the belt was shifted to it, independent of the shaft, so that when the belt was thus placed the cylinder would cease to revolve. The shoddy was forced through a pipe by a strong current of air into a reservoir called a balloon or cyclone, which was directly over the duster machine. From this reservoir the material dropped through a tube about 8 inches in diameter, into a hopper, placed in the opening in the casing above referred to, which was considerably larger than the tube, from which it passed into the cylinder. At times the tude would become clogged with the shoddy. When this occurred it was necessary to remove the clog. This was accomplished by the operator inserting his hand into the hopper and into the end of the tube, and pulling out the material which caused the clog. In so clearing out the stoppage plaintiff was injured by his hand coming in contact with the cylinder teeth.

Plaintiff claims that, immediately proceeding his attempt to remove the clog which he was engaged in doing when injured, he had shifted the belt from the tight to the loose pulley, which caused the cylinder to stop, but that, by some means unknown to him, the belt had moved back to the tight pulley, thus causing the cylinder to revolve. He also claims that a stepladder had been furnished which he used when removing a clog; that on the day of his injury he could not find it because some one had carried it off; and that he then went up and stood on a casting connected with the machine in order to elevate himself sufficiently to reach into the hopper and the tube connected with the cyclone.

The failure of the defendant to provide an appliance which would prevent the belt from shifting from the loose to the tight pulley without the will of the operator was charged as negligence on the part of the defendant. Negligence, in other respects, was also charged. The charge of negligence, as embraced in the original complaint, was as follows (paragraph 5): 'That the machine operated by plaintiff was not provided with a lever for changing the power belt from one of the said pulleys to the other thereof, and a guard thereon to prevent the said power belt from passing from one of said pulleys to the other without the will of the operator. Also, that the sides of the hopper at the mouth of said machine were not extended for a foot or more above the mouth of said machine to protect the workman from the teeth in the said cylinder therein while cleaning out same when clogged; and also in not providing a safe and secure platform upon which the operator could stand while cleaning out said machine, and that defendant company had knowledge of all of said defects and omissions aforesaid.'

The defenses interposed were a general denial, assumption of risk, and contributory negligence. Some time prior to the trial plaintiff amended his complaint by filing the following, designated as 'paragraph 5 1/2': 'Plaintiff alleges upon information and belief, and upon such information and belief charges the fact to be, that the belt conveying the power from the countershaft in said factory to the said 'duster' was not properly adjusted so as to be reasonably safe, and that defendant knew of such defect, or by the exercise of reasonable diligence should have discovered such defect.'

The defendant moved to strike this amendment upon the ground that it introduced a new and different cause of action from that stated in the complaint. The record recites that this motion was granted in part and denied in part, but is silent as to what part of the amendment was stricken. Later plaintiff filed a substituted amendment, again designated as 'paragraph 5 1/2,' which is as follows: 'Plaintiff alleges upon information and belief, and upon such information and belief charges the fact to be, that the belt conveying the power from the countershaft in said factory to the said duster was not properly adjusted, in this, that the said belt had only been in use a short time, to wit, some three weeks, and had stretched or become elongated during that time, and had a tendency to slip from one pulley to the other.'

Paragraph 7 of the original complaint is as follows: 'That on or about the 28th day of October, 1903, this plaintiff, while in the service of said defendant, and operating the said duster machine hereinbefore described, was seriously and permanently injured by having his hand come in contact with the teeth in the mouth of said machine, while in motion. * * *'

During the progress of the trial plaintiff was permitted to amend his complaint by adding the following as paragraph 7 1/2: 'And plaintiff further alleges that said injury occurred and was caused by the starting to running of the machinery of the said duster while plaintiff was engaged in cleaning out the hopper thereof after he had stopped the said machinery for the purpose of so cleaning the same in accordance with his instructions and in discharge of his duties.'

Error is assigned upon the action of the court in allowing this amendment, based upon the ground that thereby an entirely new cause of action was injected into the case. In support of this contention it is argued that plaintiff's intention, as expressed in his original complaint, was to charge negligence on the part of the defendant in not providing a means to stop the machine or safeguards to protect plaintiff while cleaning out the cyclone when the cylinder was in motion, rather than to charge negligence in starting a stationary cylinder. That is to say, according to the original complaint, the theory was that the plaintiff's hand came in contact with the machine while in motion; but according to the second theory, as exhibited by the amendment, plaintiff's hand was in the machine while it was not in motion, and the injury was caused by the machinery being suddenly started, and hence, it is urged, the amendment makes a complete change in the cause of action requiring entirely new and different evidence to support it, and the approximate cause of the accident under one theory is entirely different from that under the other.

There is no merit in this claim. Plaintiff's injury was occasioned by his hand coming in contact with the cylinder while in motion. If the cylinder had not been in motion, his band would not have been injured, and the amendment complained of merely states how it happened--that it was in motion when his hand came in contact with it. The cause of action was in no sense changed. The amendment referred to the same injury which plaintiff alleged he had sustained as the result of the negligence of the defendant, which consisted in its failure to provide the safeguards specified, the absence of which, according to the theory of plaintiff, was the cause of his injury, and the amendment merely stated how and why the alleged negligence of the defendant resulted in plaintiff being injured.

The question of whether or not an amendment to a complaint introduces a new cause of action is often one of acknowledged difficulty; but, as applied to the present case, the test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid, to meet the possible scope and varying phases of the testimony. If by an amendment in personal injury cases the plaintiff adheres to the injury originally declared upon, an alteration simply of the manner by which the defendant caused such injury is not the introduction of a new cause of action. 1 Enc. Pl. & Pr. 564.

Practically the same objections are...