
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court
    Jan. Term, 1901.)
    Before Caldwell, Marvin and Hale, JJ.
    THE SHAILER & SHINGLAU COMPANY v. HUGH D. CORCORAN.
    
      Amendment to motion for new trial—
    
    (1.) An amendment to a motion for a, new trial setting up matters occurring after the rendition of the verdict, and which were not claimed to have influenced counsel in arguing the motion for a new trial, will not be allowed.
    
      Personal injuries occurring otherwise than pleaded—
    <2.) In an action by a workman in a tunnel for injuries sustained therein alleged to have occurred through defendant’s negligence in improperly planking the roof of the tunnel and negligently, turning off the compressed air which helped in sustaining the roof, where it appears that the negligence alleged did not contribute to plaintiff’s injury, but that it occurred in a manner not alleged in the pleadings, a verdict and judgment for plaintiff will be set aside.
    This case was tried to a jury and resulted in a verdict for the plaintiff, Corcoran, for the sum of $9,500. A motion for a new trial was made,and when it was about to be argued by counsel, the defendant company asked leave to file an amendment or supplement thereto, setting up certain alleged threats made by the plaintiff, Corcoran, against the defendant company to defendant’s counsel when about to argue the motion for a new trial, that “something would happen out there which would cost the company more than five times the amount of the verdict unless they paid that up< etc.’’ The application to amend was denied by the court of common pleas as relating to matters occurring after the-rendition of the verdict and which were not claimed to have-influenced counsel in arguing the motion for a new trial.The facts involved in the issues and the principal questions presented to the circuit court are briefly stated in the opinion.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J,

First. The court refused leave to the plaintiff in error to-amend his motion for a new trial.

On the facts shown, we hold that this was not error,

Second. At the commencement of the trial the plaiptiff in error objected to the introduction of any evidence by the defendant in error for the reason that the petition did not state facts sufficient to constitute a cause of action; which objection was overruled by the court, and an exception* noted.

With some hesitation under the liberal interpretation-which must be given to the pleadings under the code, we-find that in this ruling, there was no error.

Third. It is insisted that the verdict of the jury was not supported by-sufficient evidence and for that reason should-have been set aside on motion for a new trial.

The plaintiff in error was constructing under a contract a* portion of the tunnel which the city was extending under the lake, to be used in supplying the city with water. The* defendant was employed on that work as a bricklayer, and was on February 2, 1898,seriously injured by a large quantity of earth falling upon him from the face of the tunnel, or from the face and roof thereof.

The situation is well defined in the petition, and need not be repeated here.

It was a dangerous, disagreeable and uncomfortable place to work. It was'at all times a more or less hazardous employment.

The negligence charged in the petition is as follows:

“The said plaintiff says that his injuries were caused solely through the negligence of the defendant and without any fault on his part. That the defendant negligently failed to properly support said roof so as to prevent its falling and so as to prevent said earth from falling on this plaintiff. That said defendant negligently failed to provide this plaintiff with a safe place to work as it was its duty to do. That said defendant, in supporting said roof, negligently used planks which were not of sufficient strength, and did not use a sufficient number of planks. That, the heads or braces used to support said roof were not sufficient in number dr strength. That said defendant, without giving this plaintiff sufficient notice or warning negligently withdrew and cut off the supply of compressed air which assisted in supporting said roof and strengthened the support of the same. That said defendant knew or by the exercise of proper care ought to have known of the dangerous condition of said roof, and knew, or by the exercise of ordinary care ought to have known, that the same was not properly or securely constructed. ’’

The petition contains a further description of the tunnel and the manner in which the work was done, but no other charge of negligence,

The tunnel was circular in form. An excavation of sufficient size was first made for a 3pace of ten to fifteen feet, leaving a face at the end of the excavation. The roof and sides of the tunnel after the dirt was removed, were supported by timber and planks until the brick wall was laid.

It will be noticed that the allegations of negligence have reference solely to the material used, and the manner of supporting the roof and sides of the tunnel; and this, with the farther allegations that the air pressure was removed, constitutes the negligence complained of.

There is no allegation that there was the slightest fault on the part of the company in leaving the face or end of the tunnel as it was at the time the plaintiff was injured. Moreover, the condition of the face of the tunnel on that morning was exactly as the face had always been while bricks vsere being laid in the excavated section; and of this the plaintiff was fully cognizant.

The defendant in error was at work very near the face of the tunnel, from which the testimony very clearly shows that the earth fell which struck and injured him. The manner in which the roof was supported had no connection with the injury. From some cause not explained, the earth slid from this face, the conditions of which were equally well known both to the employer and employe.

The break may have extended slightly into the roof as it was, before the accident, but of that there is some doubt. Certainly, it is very clear that the non support of the roof was not the proximate cause of the injury. It is equally clear that there was no withdrawal of the air pressure, which caused or contributed to this injury. The evidence falls far short of establishing any negligence in this regard on the part of the plaintiff in error.

It also seems very clear to us, that the negligence with which the plaintiff is charged, if it in fact existed, had no agency in causing the injury to the defendant in error.

It follows from what has been said, that the evidence permitted to be introduced descriptive of the face of the tunnel and the feasibility of guarding against slides, was not competenc for the purpose of laying a foundation for recovery; no charge in that regard having been made in the petition. Possibly it was competent as affording an accurate description of the place where the defendant was working, But, without more critically examining that testimony and the ruling as to its introduction, we hold that if competent at all, its effect should have been limited to the purposes above indicated.

We recognize the fact that the employment in which the defendant in error was engaged at the time of his injury was at best attended with great peril, and that the employer should be held to a strict performance of his duty towards the employe. If, however, we are right in our con•elusion as to the cause of this'injury, neither of thess parties was seriously at fault. The injury was the result of an •accident for which neither was responsible.

Bentley & Vickery, for Plaintiff in Error.

McKisson & Daioley,. for Defendant in Error.

A motion for a new trial should have been allowed for the reason chat the verdict was not sustained by the evidence; and, in overruling such motion, there was error, and for that reason the judgment of the court of common pleas is reversed and the cause remanded for further proceedings.  