
    Charles A. Limerick, Respondent, v. William H. Holdsworth and Percy J. Holdsworth, Doing Business under the Firm Name of William H. Holdsworth & Son, Appellants.
    Second Department,
    January 26, 1910.
    Master and servant—negligence —injury by truck which overturned — facts not justifying recovery — recovery for negligence not claimed at trial — failure to object — pleading — conforming pleading to proof — proximate cause.
    Action against a master to recover for personal injuries received by the driver of a truck with which he was told to transport a heavy casting. The master directed the casting to be loaded on the front part of the truck, and while the plaintiff was attempting to back the vehicle out of a shed, the pole of the truck broke and it turned over, causing the casting to fall upon him. Although the plaintiff claimed that the pole was rotted, there was testimony to the contrary and the pieces of the pole brought into court showed no such defect. On all the evidence, held, that a verdict founded upon a finding that the pole was defective was against the weight of the evidence.
    Where the complaint alleged that the accident was caused solely by reason of the negligence of the defendant in failing to provide a suitable and properly constructed truck, there can be no recovery on the ground that the master was negligent in directing the casting to be loaded upon the forward part of the truck.
    This is true although the defendant did not object to evidence, brought in as res gestee, showing that he directed the casting to be so placed, if no claim of negligence in that respect was made at trial, for he was not bound to obj ect to details of the narrative having no relation to the sole ground of the negligence alleged.
    It is only where new issues are openly presented and contested by common consent, with a full understanding of the change of front, that the court is justified in treating the pleadings as amended to conform to the proof.
    Moreover, the master was not negligent in ordering the casting placed on the front of the truck, if there was no reason to anticipate any danger except under the special situation caused by the front axle turning parallel to the truck after the pole broke so as to make it less stable.
    A verdict cannot be sustained on the theory that the master was negligent in placing the load on the forward part of the truck, when the jury found, contrary to the evidence, that the proximate cause of the accident was the defect in the pole.
    Appeal by the defendants, William H. Holdsworth and another, doing business under the firm name, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Kings on the 8th day of December, 1908, upon the verdict of á jury for $30,000, and also from an order entered in said clerk’s.office on the 14th day of December, 1908, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frank V. Johnson, for the appellants.
    
      Frederick S. Martyn [Herbert S. Worthley and Charles Zerbarini with him on the brief], for the respondent.
   Woodward, J. :

The plaintiff in this action, which ib brought to recover damages for personal injuries sustained by him while in the employ of the defendants, was engaged in driving a team hitched to a truck used for transporting heavy iron castings from the defendants’ foundry to points of delivery, and had been thus employed, using the same truck, for a period of several weeks prior to the 24th day of-April, 1905. On the date mentioned the plaintiff was directed by one of the defendants to take on a certain casting, weighing about 2,800 pounds, and to deliver the same at the Erie Basin. This casting was five feet’and ten inches long, and two feet and ten inches wide, one side being much heavier than the other. It is claimed that one of the defendants directed this casting to be loaded in the front of the truck,, as he desired to place .some smaller cast-' ings in the rear end, and the negligence of the defendants, if it is negligence, must be. found in this direction, for the negligence specially pleaded is not sustained by the evidence. After the casting-had been placed upon the forward end of the truck, as it is claimed by the direction of the defendant, tlie plaintiff drove his team in upon some scales under a covered shed for the purpose of taking the weight of the casting, the truck having been previously- weighed. After the weight had been taken, the plaintiff undertook to back his team with its load out of the shed and onto the street. He was standing upon the truck, back of the driver’s seat, with his feet between holes in the heavy casting! While so stationed, and while his team was backing, the pole or tongue of the truck broke off near the axle, and the plaintiff testifies that the end or some part of the tpngue flew up and hit him on the head, knocking him off the truck, and that the truck then turned over, the casting falling upon him and breaking his leg in such a manner that it was necessary to amputate the same. The plaintiff’s theory of the case was that the tongue or pole of the truck was defective; that it was worm-eaten and affected with dry rot,x which a reasonable inspection on the part of the master should have discovered and remedied, and that the breaking of this pole was the proximate cause of the accident. He produced two witnesses to testify to the alleged condition of the pole at the time of the accident, and their evidence, if believed, would indicate that the pole was rotted , to some extent, and that there were worm holes in it, but the pole was brought into court and displayed, and the learned trial court, in a memorandum handed down, declares that the evidence in support of the alleged defects in the pole was unsatisfactory, and we are clearly of the opinion that, with the evidence of a disinterested witness that the pole was in a proper condition, that there were no defects which were apparent even after the accident, tlie verdict cannot be permitted to stand upon this theory. And this brings us to the consideration of the question of whether the verdict, predicated upon a theory which does not appear to have been thought of by the plaintiff, or really litigated, can be permitted to stand.

The complaint alleges, and 'no suggestion of an amendment appears, that “the foregoing accident'was caused solely by reason of the negligence and carelessness of the defendants, their agents and servants, in neglecting and failing tó provide a proper, safe, and suitable truck for the said plaintiff to work with and upon and in causing, permitting and allowing the said plaintiff to work with and upon the said truck, well knowing that the same was not proper, safe or suitable, and in furnishing and providing for the use of the plaintiff, and in directing him and requiring him to use a truck which was of improper and imperfect construction and design, and which -was not properly constructed and liable to tip over, and which was defective,' worn out, and in a dangerous and unsafe condition for use, and the said defendants were also negligent and careless in failing,to notify the plaintiff of any of the said defects of said truck, and in failing to provide a proper, safe and suitable place for the plaintiff to work in and upon, and in failing to provide a proper, safe and suitable truck and appliances for him to work with, and the plaintiff was in no way negligent.” "The allegation is that the accident was caused “ solely by reason of the negligence and carelessness of the defendants ” in reference to the truck used and its condition, not that the direction of the defendant that the particular casting be placed upon the same in any particular place caused the accident, and the testimony of the plaintiff was all directed to the issue raised by his complaint and the denial of the defendants; the reference to the direction by one of the defendants being purely incidental, and as_ a part of • the res gestee, as it were, of the case: It is true there was no objection or exception interposed, to the plaintiff’s testimony upon this point, but it is entirely obvious that there was no occasion for an objection. The issue presented was that there was a defect in. the truck, or in the appliances, not that the master had given negligent directions in the loading of the truck, and when the witness, in telling his story, and without any intimation — for it does not appear to have been thought of by the plaintiff at any stage of the trial — that the issues were to be changed, incidentally referred to the directions given him by one of the defendants, the defendants were not bound to anticipate this change of front and to offer objections to the narrative where it had no relation to the negligence alleged as the sole cause, of the accident. It is only in those cases where the issues are fairly, and openly presented and contested by common consent, with a full understanding of the change of front, that the court is justified in construing the pleadings as having been amended in conformity with the proof, and there was no effort to have.the court amend the pleadings, nor was there anything in the case to give notice to the defendants that the plaintiff intended by this purely incidental testimony to change the entire theory of the law suit. “Parties go to court to try the issues.made by the pleadings,” say the court in Wright v. Delafield (25 N. Y. 266, 270), “ and courts have no right impromptu to make new-issues for them on the trial to their surprise or prejudice, or found judgments on grounds not put in issue, and distinctly and.fairly litigated.” (Day v. Town of New Lots, 107 N. Y. 148, 154, 155 ; Scott v. International Paper Co., 125 App. Div. 318, 322, and authorities there cited.) The case last above cited is peculiarly in point, although the decision rested upon a question of evidence. In the case now before us there was no opportunity to object to the testimony, as it was not offered even by the plaintiff for the purpose which the court afterward made use of in disposing .of the case. But beyond this, there was no evidence in this case to justify a finding that it was negligent on the part of one of these defendants to direct that the casting should be placed in the front of the truck. The direction was not specific that the casting should be placed at any particular spot; it was at most a mere general direction to place the casting in the front of the truck so that some smaller ones might be loaded, leaving to those who were helping the plaintiff to load the truck to determine just how far front it should be placed, in what position it should be placed, and all the details. The only evidence bearing on the question of the danger of loading the casting on the front was given by one Sliadbolt in behalf of the defendants, on cross-examination, where he said that “ When the front wheels of a truck are turned in such a manner that the axle is parallel with the length of the truck, then the points of support of the front part of the truck are very narrow. The only stability to that truck then is the base of the hind wheels. The truck practically rests upon the ground at three points, the two hind wheels and the single point in front. It, therefore, necessarily follows from that that a heavy load placed on the front of the truck somewhat tends to destroy its equilibrium. If the weight is in the rear of a truck the equilibrium would be greater, much more difficult to dislodge it.” The witness had been testifying on direct examination to the. causes which led to the breaking of the pole, and this cross-examination was apparently in elaboration of this proposition, without any suggestion that the issue was being changed. There was no evidence whatever that the defendant who is said to have directed that the casting be placed in the front of the truck had any reason to believe that the front axle would be placed parallel with the length of the truck. Indeed, the testimony was that the purpose of the pole was to guide the truck; that the “front wheels could not change their position without the pole also swinging ; it holds the front wheels in their proper relation; the pole and the front axle are always at right angles. As long-as the pole is maintained directly in front, the wheels cannot turn, and the way' to turn- the wheel is to turn the pole around to one side or the other,” so that if the pole did not break and the driver did not permit his horses to veer around at right angles with his truck, there would be an entire absence of the only condition of danger suggested even remotely in the evidence. In other words, there was no necessary danger in loading the truck heavy in front; it was only under special conditions, which there was no reason to anticipate, that this particular loading would’ be dangerous, and every man familiar with teaming knows that it,is customary, and in harmony with the economic application of power to the load, to place the greater part of the load over the front axle. The direction said to have been made was- not a command to do a particular thing; it was merely in the form of a suggestion that this particular piece should be loaded toward the front, to give room for the other pieces. . It was not a matter of judgment, blit one of expediency, and there was no evidence that any danger whatever was to be apprehended from placing the load in front rather than at the fear, for there was nothing in the evidence to show that it was anticipated that the forward .wheels would be placed at right angles with the body Of the truck, or that there was 'any reason why any person of ordinary prudence would anticipate, such a situation in directing the loading of this truck.

. The jury answered three specific questions submitted by the court, holding that the proximate cause of- the accident was the breaking of the pole;, that the pole broke because of its defective condition, and that the defendants could have discovered this condition by the exercise of reasonable care. If the breaking of the pole was the proximate cause of the accident, then the alleged negligence in the direction to load was not the proximate cause of such accident, and as the learned court reached the conclusion would not support the finding that the pole broke because of defective condition, which an examination would have disclosed, and the direction in reference to the loading was not the proximate cause of the accident, it is clearly improper to sustain a verdict upon the latter ground, and particularly as that ground was not relied upon by the plaintiff," and was not fairly litigated upon the trial.

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

Herschberg, P. J., Jenks, Thomas and Rich, JJ.,, concurred. "

Judgment and order reversed and.new trial granted, costs to abide the event, " ■  