[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 325 This appeal is from a judgment upon a verdict awarding damages in a common-law action for negligence of a master, resulting in personal injury to a servant.
Defendant's answer is a general denial. At the close of plaintiff's case in chief, defendant demurred to the complaint and moved to dismiss it for failure to state facts constituting a cause of action; moved to strike certain testimony as not admissible under the complaint as a basis of recovery; moved to strike certain other testimony on another ground; and moved for a directed verdict. These motions having been overruled, defendant elected to stand on them, introduced no evidence, and did nothing further but except to the instructions.
Appellant's first proposition here is that the complaint fails to state facts constituting a cause of action.
Whatever the shortcomings of the complaint, appellant availed itself of none of the opportunities to improve it. It was conten to deny it generally and to go to trial on it. The only question now is whether it contains a statement of facts constituting a cause of action. 1929 Comp. St. § 105-404. In this kind of a case, as appellant suggests and we agree, the essentials will be allegations showing a duty, a breach of it, and injury proximately caused by the breach.
Varying somewhat the order of allegation, and combining and abbreviating, we may say that the complaint contains these allegations: *Page 326 Defendant, in its business of cattle ranching, employed a pump jack with cogwheels, which would cause injury to a person whose clothing or body came in contact with them. Ordinarily such wheels are furnished with a guard, a simple and inexpensive device. The wheels in question were not guarded. The plaintiff was employed as a ranch laborer, and, though he informed defendant that he was inexperienced in operating such machinery and had great difficulty in seeing what he was about (he being partially blind and of failing eyesight), defendant set him to operating the pump jack and the gas engine which furnished its motive power, and required him to oil and grease the same and keep it going. Defendant at all times had notice of the dangerous condition of the pump jack, and that it constituted a dangerous instrumentality, especially to plaintiff with his failing eyesight, and, several days before the occurrence of the injury, promised plaintiff immediately to cure the dangerous condition and to cover and guard the cogwheels for plaintiff's protection. Plaintiff continued his work in reliance upon this promise. On the day in question, while in the regular course of his employment, plaintiff "was struck by a gust of wind blowing through an open door of the pump house and forced and made to slip on the floor, and stumble against the unguarded, uncovered and unprotected * * * pump jack, and his * * * hand was then and there * * * cut off."
Conceiving that, under the complaint, the alleged proximate cause of the injury was the "gust of wind," and that the unguarded cogwheels were but a condition, appellant invokes the propositions that the master's duty to furnish a safe place to work does not include a provision against accidents which he could not reasonably be expected to foresee, and that negligence is not actionable unless it be the natural and probable cause of the injury. These propositions we need not question.
We think, however, that the learned counsel for appellant attaches undue importance to the gust of wind. It was itself a mere circumstance or condition, probably unnecessarily pleaded. One who is required to keep machinery running and to oil and grease it is likely to come in contact with it as a result of accidental slipping or falling, or of any occurrence momentarily distracting the attention. Such contact is to be anticipated. It will result in injury or not, according as the master has guarded the machinery in the usual manner. So it seems to us that it is the lack of a guard, rather than the slipping or the gust of wind which caused it, that this complaint relies on as the proximate cause — the "cause which, in natural and continued sequence, unbroken by any efficient, intervening cause, produced the result complained of, and without which that result would not have occurred." Lutz v. Atlantic Pacific R. Co., 6 N.M. 496,30 P. 912, 916, 16 L.R.A. 819. Neither the wind nor the slipping fulfills this definition. It may be that they are causes without which the result would not have occurred. But neither produced the result in natural and continued sequence, and, as to each, there was an efficient intervening cause. *Page 327
Appellant's next point is that there was a fatal variance between allegations and proof, to an extent that the verdict may not be deemed responsive to the complaint.
While appellee alleged that "he was struck by a gust of wind * * * and forced and made to slip on the floor, and stumble against the unguarded, uncovered and unprotected * * * pump jack"; he testified in substance: "I was oiling the cogwheels with an old tomato can. I did not have a long can with a spout to it to oil with. Just as I had finished to oil this part where the guard was missing, when I was going to take my hand away, I am not certain, I wasn't certain whether I was going to withdraw from the engine because there was a lot of wind coming in through the doors, before I moved it I was hurt." He said nothing about slipping or stumbling.
We do not understand that variance in minor attending facts is relied upon by appellant; his principal contention being that the effect of the variance is to switch the probable cause from the gust of wind to the unguarded cogwheels, and to bring in the new theory that, in oiling the dangerous and unguarded part with an unfit instrument, the hand came in contact with it.
True, the evidence puts the matter in a somewhat different light than the complaint put it. We cannot agree, however, that it discloses "an entirely different cause of the injury." Under either version of what happened, we regard the negligent failure to guard the cogwheels as the efficient cause.
We think also that, under the allegations that appellee was required to oil and grease the machinery and to keep it running, and that the injury occurred "when he was in the regular course of his employment," it was proper to admit the evidence that he was at the moment engaged in oiling the cogwheels. We think, likewise, as counsel himself suggested at the trial, that appellee's impaired vision had a place in the case as bearing upon the question of appreciation of danger, and that the fact that he was working with a tomato can instead of a regular oil can, was admissible as one of the facts immediately attending the injury.
It may be that the jury reached its verdict or that some jurors concurred in it in the view that it was negligence thus to employ a partially blind person, or to require him to oil cogwheels with a tomato can. The way to prevent that was by instructions limiting the effect of those facts. Appellant made no such request.
Appellant next contends that, under the theory of fact which appellee was permitted to adopt at the trial, the doctrine of assumption of risk precludes recovery.
Appellant relies on two main conclusions of fact: First, that appellee knew the danger as well as appellant, if not better; and, second, that there was no necessity, and he had no business, to oil the machinery while running.
The evidence is somewhat conflicting as to whether the necessities and his instructions justified appellee in oiling the exposed *Page 328 cogwheels without stopping the engine. This was a question for the jury.
Appellee knew that his vision was poor and the room poorly lighted. A day or two before the accident he had heard a remark that "A person would be liable to cut an arm off there in those wheels on account of it not being guarded." This was his first knowledge that a customary safeguard was lacking, and his first knowledge of danger. It caused him to suggest to the foreman that "A person was liable to get hurt," and to ask him "Why he didn't fix that place there." The foreman told him not to be afraid, to continue to work, and that "he would fix it right away."
It was possible, of course, to oil these parts without injury. Appreciation of the danger would depend somewhat on experience. Appellee had had no previous experience. He knew that fact too. But we cannot say whether it tended to extra caution or to a lesser degree of appreciation of danger.
We think this case well within Crawford v. Western Clay, etc., Co., 20 N.M. 555, 151 P. 238, 239, where, after setting forth the facts, we concluded: "Whether the deceased knew and appreciated the danger and nevertheless performed the service, or whether the conditions were such that he, as an ordinarily prudent man, must have known the danger, is a matter of fact about which minds of men might differ, and the question was for the jury."
See, also, Singer v. Swartz, 22 N.M. 84, 159 P. 745; Leyba v. Albuquerque Cerrillos Coal Co., 22 N.M. 455, 164 P. 823; Leyba v. Albuquerque Cerrillos Coal Co., 25 N.M. 308, 182 P. 860.
Concluding that this is not, as matter of law, a case of assumption of risk, we need not consider the effect of appellant's promise to repair as justification of appellee's continuing to work.
There is no evidence that appellee performed in a negligent manner the work of oiling the part with the instrumentality furnished. Appellant's contention of contributory negligence is a claim that it was negligence to oil the part at all with the pump jack in motion. This we think presents the same question already disposed of in considering assumption of risk.
It is contended that evidence of appellee's poor vision was inadmissible and should have been stricken on appellant's motion, as the complaint predicated no liability upon it. As already suggested, it was relevant as bearing on assumption of risk. Appellant did not ask the court for an instruction limiting its purpose and effect.
Appellant's motion to strike all evidence to the effect that it had ordered appellee to oil the pump jack while in motion, was predicated on the theory, which we here reject, that as matter of law the act, to appellee's knowledge, was so highly dangerous that he assumed the risk, notwithstanding appellant's order.
We conclude that the judgment should be affirmed and the cause remanded.
It is so ordered. *Page 329
BICKLEY, C.J., and SADLER and HUDSPETH, JJ., concur.
PARKER, J., did not participate.