I. I believe the allegation of the petition in stating that the step, which gave way and caused the plaintiff to fall, was not driven into the pole far enough so that it could maintain the weight of the plaintiff, stated a cause of action in that particular. In an action founded on negligence it isGeneral not necessary to state the specific factsAllegation. constituting the negligence; a general statement of facts is sufficient, particularly after verdict. [Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad,75 Mo. 295.] A general allegation of negligence is good unless it is attacked for want of being sufficiently definite. In such case, a motion to make more definite and certain is the proper remedy. It was said by Judge GRAVES in case of Sartin v. Hospital, 195 S.W. l.c. 1038, that the filing of a motion to make more specific is in effect a concession that a cause of action is stated in the petition. The defendant in this case did not demur, evidently believing that a cause of action was stated. I think, undoubtedly, if the defendant had failed to file a motion to make more specific and definite, it would have waived that defect — the lack of particularity. *Page 390 [Phillips v. Railway, 226 S.W. l.c. 865; Lynch v. Railway, 111 Mo. l.c. 604.] The general rule is that a petition which states a cause of action, though imperfectly, is good against a general objection. [Anderson v. Lusk, 202 S.W. l.c. 306.]
In this case the petition stated simply that the step was not driven far enough in to be safe, without stating the length of the step or the distance which it was driven into the pole. That is, a general statement, imperfect because lacking particularity, is good until attacked for that reason.
II. It is true the authorities are in conflict as to whether answering over after a motion directed at the petition is overruled, waives the defect. Among the cases cited in support of that position, I think none of them was where a motionWaiver. to make more specific was overruled. I think it more nearly comes under the rule announced in the case of Bailey v. Kansas City, 189 Mo. l.c. 503, and in the case of Car Manufacturing Company v. Rolling Mill Co., 285 Mo. l.c. 694-698, where the subject is discussed at length. It appears to me a harsh rule to hold that a defendant in such case would waive his right to claim an error where he made the point in the only way he could, and at the earliest moment he could.
III. However, I think the evidence fails to show any negligence in support of that particular allegation. Manifestly a step would not be driven into the pole far enough to make it safe if the weight of a man would cause it to pull out.Insufficient Otherwise, it is difficult to see why it would notEvidence. be far enough, or that a difference between 4½ and 5½ inches in that part of the step extending from the pole would be sufficient upon which to found an action for negligence.
It is a law of mechanics that the pressure on a fulcrum is in direct proportion to the length of the lever *Page 391 to which the weight is applied. An added inch to the external projection of the step in this case would increase the strain only twenty-five per cent. If the steps were too weak to stand that much additional weight they were unfit for use at all. For they would be likely to break if a very heavy man with a heavy equipment should use them, or if a lineman inadvertently should place his foot and weight on the extreme end of the step instead of against the pole. So, to say that a step extending five inches from the pole was unsafe, in that it was liable to break is to say that it was unsafe to use. If the motion had been sustained and if the plaintiff had amended so as to plead the specific facts shown by the evidence, he probably would have failed to state a cause of action, because he could not state a reason why five inches of projection was unsafe if four inches was safe.
There was no evidence to show that the steps used had that inherent weakness. Therefore, I think the evidence did not sustain that particular allegation of negligence, and that issue should not have been submitted to the jury. Therefore, I concur in reversing the judgment and remanding the cause. Blair, J., concurs.