Whitechurch v. Mutzig ( 1922 )

McBRIDE, J.

This is an action purely and simply upon the statute known as the Employers’ Liability Act, and the evidence entirely fails to show that the injuries were caused by reason of the alleged acts of negligence charged in the complaint, the substance of which is that the defendant in the course of the erection of his building caused to be constructed a scaffold immediately adjacent to and over the sidewalk and about twelve feet from the ground, and upon said scaffold laid heavy planks without nailing them or fastening them in any manner; and that by reason of this negligence he “permitted some of the planks npon said scaffolding to fall therefrom and strike plaintiff upon her head, shoulders and face, thereby injuring her. ’ ’ The evidence tended to show that there was no scaffold erected adjacent to or over said walk, but that after the exterior of the building had been completed the workmen or contractor had piled a lot of heavy rubbish against the side of the building and npon a vacant lot, odds and ends generally and among other things a portable scaffold or saw-horse of considerable weight, but without screening the pile from the sidewalk. A wind caused the pile to fall, and one of the timbers which composed the horse or scaffold struck plaintiff, inflicting serious injuries. While this might in itself furnish ground for an action at common law, if accompanied by appropriate allegations, it does not come within the purview of the employers’ liability law, upon which the plaintiff chose to rely, but on the contrary the alleged act of negligence set out in the complaint is entirely distinct from that attempted to be proved at the trial. It is not competent to allege one ground of negligence in the complaint and attempt to prove another and different ground on the trial.

The evidence considered with reference to the form of action was more than a variance; it was a failure of proof. The judgment is affirmed. Affirmed.

Burnett, C. J., and Harris and Rand, JJ., concur.