Davis v. New York, Lake Erie & Western Railroad ( 1886 )

Smith, Ch. J.

[After stating the facts.] It is entirely clear to my mind that the court erred in permitting the plaintiff to prove that the coal furnished for use upon his engine was of bad quality, and unsafe and unfit for such use. As we have seen, the complaint contained no allegation touching the kind or quality of fuel furnished plaintiff. On the contrary, the complaint alleges that the engine furnished to plaintiff was out.of repair, defective, insecure, and dangerous, by reason of which the plaintiff suffered the injuries complained of. On the trial the plaintiff attempted to prove that the netting upon his engine was defective, insecure and dangerous. He could only prove that when coal not screened, dirty, and of a kind and quality unfit for use was employed, the netting was unsafe and defective, but his own witnesses testified that the netting was safe and proper for use with a good quality of coal. When, therefore, the court allowed the plaintiff to abandon the charge in the complaint, that the engine was defective and unsafe, and to prove instead that the fuel used on the engine was of a bad quality, that it could not be used with safety upon an engine properly constructed and in good condition, he compelled the defendant to meet an issue not made by the pleadings, and which it did not come into court to try; and the jury were allowed by the admission of this improper evidence to find a verdict for the plaintiff, because the fuel furnished him was not of good quality, but was unfit and unsafe for use upon his engine.

If the complaint had not specified in what particular the defendants were guilty of negligence, or failure to do its duty towards the plaintiff, it would have been deemed defective, and the plaintiff could have been compelled to state in his complaint specifically the negligence or neglect of duty which caused the injury for which he sued. And in stating the facts requisite to make his complaint sufficient in this respect, he was hound to state them truly, so that the defendants might know with what fault or wrong they were charged, and come to the trial prepared to meet the charge. The very object of written pleadings is to frame the issues so that the parties may know what questions are to be tried, and make preparation therefor; and this purpose is frustrated and manifest injustice is done if, on the trial, the party is allowed to abandon the issues deliberately framed, and substitute other and different ones. The defendants, no doubt, were bound to furnish the plaintiff a safe and proper kind of coal to nse upon his engine; and had the complaint contained proper allegations on that subject, either originally or by proper amendments, a verdict based upon those allegations, and suitable proofs supporting them, would not be disturbed.

I have not considered other questions made by defendant in this case, because the error of the court in permitting evidence to be given to support an issue first raised on the trial, renders it necessary to grant a new trial, upon which, with amended pleadings, or otherwise, those questions may not arise.

The judgment and order appealed from should be reversed, and a new trial granted, costs to abide the event.