On Motion for Rehearing. Appellant vigorously renews and ably reargues two questions: Insufficiency of the complaint to state a cause of action, and variance between complaint and proof.
Under the first point it is again urged that the facts as pleaded disclose that the unguarded condition of the machinery was not the proximate cause of the injury.
The question of causation has produced much nice reasoning and many divergent views. The case before us does not involve great difficulty, as we see it. We deem argument unnecessary to demonstrate that, as the facts were pleaded, the efficient cause of the injury was the unguarded cogwheels. The intervening accident of stumbling was of itself inefficient to produce the injury. Therefore, it would not necessarily break the chain of causation. Thompson, Commentaries on Negligence, § 54 et seq; "Negligence," 45 C.J. § 490.
The question then arises whether this intervening and inefficient circumstance, in the absence of which the particular injury would not have occurred, serves for any reason to defeat appellant's liability. The generally accepted test is whether it was reasonably to have been anticipated.
So far as involved in the law of negligence and of master and servant, the reason for guarding dangerous machinery is that contact with it will result in injury. If nothing untoward should occur to bring about contact, the negligence will be harmless. If contact should be occasioned through a negligent act of the servant, the master will not be liable for it. So, the only case of liability will result from some circumstance or act not amounting to negligence on the servant's part. If the master may generally point to such circumstance or act, without which there would have been no contact, as interrupting the chain of causality, and as relieving him from liability, there will be no cases of recovery. Doctrines which have found acceptance at some times and in some quarters would logically come to that.
The circumstance of a servant stumbling into dangerous machinery in the course of his employment is so common an experience and of such frequent occurrence, and accordingly so probable, that it seems to us that the risk of it must be in the mind of a prudent person charged with the legal duties of master.
Cases are brought to our attention which support the contention that such stumbling into unguarded machinery is not reasonably to be anticipated, and that it is no part of the master's duty to guard against such an occurrence. Those cases are found collected in a note to Labatt's Master Servant (2d Ed.) § 1575, where the author says: "In some cases where a servant has slipped or stumbled and been injured because of unguarded *Page 330 machinery or of some other dangerous condition due to the master's negligence, it has been held that the slipping was the proximate cause of the injury, and consequently the master was not liable for the injury."
Later in the same discussion it is said: "The fact that the immediate cause of the servant's being injured by coming in contact with machinery which should have been guarded, or of his being injured in some other way, was a slip or stumble, will not, according to the great weight of authority, prevent the master's negligence from being considered the proximate cause of the injury."
Cases may be and have been cited in which the combination of circumstances was so extraordinary that to hold the master to a duty of anticipating them would have been to require of him an imaginative and fearful mind, rather than a prudent and foreseeing judgment. This is not such a case.
Construing the present complaint most strictly against the pleader, we might attribute the injury to an act of God. If the "gust of wind" did literally "force" appellee and "make" him to slip and stumble, we might have an intervening cause not reasonably to have been anticipated. But a mere gust of wind would not have accomplished so much, as experience tells us. Indulging a reasonable construction, the pleader evidently meant to aver, not that the physical force of a gale of wind threw him into the machinery, but that (for some unexplained reason) the gust of wind caused or occasioned his slipping or stumbling. It might be going far to require of appellant that he anticipate that a gust of wind or any other particular circumstance would result in stumbling. It would be going just as far in the other direction to say that appellant could not reasonably have anticipated a stumbling. As you multiply the peculiar imaginable circumstances which may result in stumbling, you render it less likely that the particular occasion would be a gust of wind, but more likely that there would be a stumbling.
Appellant urges that except as required by statutes, such as the factory acts, no duty rests upon the master to guard dangerous machinery, and that failure to do so is not in itself negligence, citing 39 C.J. pp. 401, 403. This same text, however, embraces the proposition that the master's duty to furnish a safe place to work and safe appliances, includes the duty to guard machinery where safety requires. We cannot doubt that the circumstances here pleaded were properly to be submitted to a jury for determination of the master's duty.
As may be seen, we have construed the complaint liberally to support the judgment. Appellant objects that its right to challenge the sufficiency of the complaint was not lost or disparaged by his answering it and going to trial. It is true that the right remains open, but we think that, if postponed as in this case, the rule of construction is different. While pleadings are in the formative stage, the parties may well insist upon strict construction and the framing of sharp issues. Mayer v. Lane, 33 N.M. 18, 262 P. 178, *Page 331 cited by appellant, is such a case. But the rules of pleading are intended to bring out the issues; not to promote surprise. To withhold the objection until the plaintiff has rested his case, puts him at a disadvantage and impedes the proper efforts of the court to reach a just conclusion on the merits. When the objection appears at such late stage, the endeavor should be to sustain the complaint if by taking a liberal view its averments will support a judgment.
Such is the rule laid down in State Bank of Commerce v. Western Union Telegraph Co., 19 N.M. 211, 142 P. 156, L.R.A. 1915A, 120. In that case the challenge was first effectively made on appeal. The reason for liberality of construction is somewhat stronger at that later stage in the proceedings. The principle is the same. We assume that the learned district judge, in view of the belated attack, construed the complaint about as we have. A reasonable interpretation of the pleadings below is binding on appeal. Gaastra v. Holmes, 36 N.M. 175, 10 P.2d 589; Horton v. Atchison, T. S.F.R. Co., 34 N.M. 594, 288 P. 1065.
We come now to the question of variance. It consists, first, in reducing the gust of wind from an overpowering physical force to a mere cause of distraction; and, second, in putting appellee in the act of oiling the dangerous part.
We have already endeavored to harmonize the first claimed variance by construction of the complaint. Appellant urges that the second goes to the substance of the case, and that the pleading misled it and deprived it of available defenses.
First, it is argued, it affects appellant's duty — one thing if the servant was injured while oiling the dangerous part; another, if he merely stumbled into it in passing. If so, it would also affect the question of proximate cause. By what we have said we have minimized this difference. In either case it was a question for the jury, under proper instructions as to the master's duty, to provide a safe place to work and safe appliances, and as to proximate cause. The allegation that appellee was in the course of the employment might have been attacked by motion to make more definite and certain. Since it was not, we must assume that the preparation of appellant's defense did not require greater particularity. In proof of that allegation it was proper to permit appellee to show that he was oiling the cogs, or whatever other particular duty he was engaged in.
Then, it is argued, if the complaint had given notice of the claim that the injury occurred while appellee was engaged in oiling the dangerous part, appellant could and would have pleaded assumption of risk, contributory negligence, and appreciation of danger. The argument has force as to the importance of particularity in the complaint. It might well have prevailed on a motion to make more definite and certain. We do not find it persuasive in this proceeding to reverse the judgment. *Page 332
We conclude that the appeal has been correctly determined. The motion for rehearing is therefore denied.
BICKLEY, C.J., and SADLER and HUDSPETH, JJ., concur.