
    George Huber, Resp’t, v. William H. Wilson, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    1. Pleading—Waiver oe indefiniteness.
    The service of an answer is a waiver of the right to assail the complaint for indefiniteness, and the complaint cannot be dismissed on that ground.
    2. Negligence—Injuries to employe.
    Plaintiff was employed by defendant as a day laborer to assist in unloading a vessel, for days’ wages to be paid by him for a company. Defendant superintended the work, and directed plaintiff to arrange certain timber in a sling evenly, and as soon as this was done gave the order to the engineer to go ahead, and before plaintiff could leave his position he was struck and injured by the timbers. Three witnesses for plaintiff testified that the order was given without previous notice to plaintiff, which was denied by defendant. Held, that the evidence was sufficient, if believed by the jury, to warrant a finding of carelessness on the part of defendant, and freedom from negligence on plaintiff’s part.
    Appeal from a judgment on the verdict of a jury, and an order denying a new trial.
    
      Nathan Bijur, for app’lt; Gwillim & Meyer, for resp’t.
   Daniels, J.

So much of the complaint as stated a cause of

action against the Ocean Steamship Company of Savannah was dismissed at the close of the plaintiff’s case for want of evidence to sustain it. And the action then proceeded against the individual defendant who was finally held liable by the verdict. At the opening of the case the court was asked for its dismissal by the counsel for this defendant because there was no allegation connecting him with the injury received by the plaintiff. And at the close of his evidence another motion was made for a dismissal in his behalf, for want of evidence proving him to have been negligent. Each motion was denied, and the defendant’s counsel excepted to the denials. And these exceptions present all that will require examination for the decision of the appeals.

The complaint was neither pointed nor explicit in its allegations of the cause of action, which was held at the trial to have been maintained by the evidence. But it did aver the unloading of the steamer Dessong, during which the plaintiff received his injury, to have been “ under the sole care, supervision and control and management of the defendant, William Wilson.” That he had employed the plaintiff as a day laborer in and about this work, at daily wages to be paid by him in behalf of the company. And while the plaintiff was adjusting lumber in the slings to be handed on deck, and acting under the orders of this defendant, it was alleged that the logs in the sling were suddenly started and struck him in his foot and ankle, thereby breaking his leg, and that this was caused by the reckless carelessness and negligence of the defendants, to which the plaintiff had in no manner contributed. These statements, aided by the inferences which they supported, did present all the essential facts necessary to create a right of action. But at the same time they were not made with that degree of definiteness which the rules of good pleading have required. But for that defect a dismissal of the complaint is not the remedy which has been provided. The defendant was still at liberty to take issue with the allegations, and proceed to trial upon them as they had been made. If he had not been so disposed a motion was available to him to make the complaint more definite and certain. But the right to assail it in that manner was lost by the service of his answer. That was a waiver of the defect, and an election to go to trial on the pleading as it was, and which from his position and participation in the business he could very well do without any danger of surprise from the proof. There was therefore no legal ground remaining on which the complaint could have been dismissed because of any deficiencies in its statements.

There were two decks above the hold of the steamer, in which the plaintiff was at work when the accident took place. The timber to be taken from the hold to the upper deck was from thirty-five to forty feet in length, and three or four inches thick, by about four inches wide. And it was taken from the hold to the deck by a chain and rope attached to a steam engine or winch, near the open hatchway of the outside deck. Two of these timbers were in what was called the sling, to be drawn upon deck by the power of the engine, but they had not been evenly arranged. And the evidence was, that the defendant directed the plaintiff to arrange the timbers evenly, and that he proceeded to do so, and just as that had been done that he gave the order to go ahead, which was obeyed by the person in charge of the engine before the plaintiff could so far leave his position as to be in one of safety, and that he was struck by the timber, receiving from the blow a fracture of the small bone of his left leg, by which he was for many months afterwards disabled. It is the act of giving this order and thereby starting the movement of the timber, without any preceding warning, that was relied upon as negligent and improper. That the order was given without preceding admonition or notice was denied by the defendant in the testimony given by him. But as the evidence of the witnesses Denicks, Hcissenbittle and the plaintiff, was decidedly in support of the fact as it has been stated and that the timbers were started with a jerk, there was sufficient, notwithstanding this denial, to produce the conviction in the minds of the jurors that there was carelessness on the part of the defendant which was the cause of the plaintiff’s injury. These persons were in the hold at the time with the defendant, and so situated as to hear and observe what was the subject of their testimony. There was no reason for rejecting their statements. And those statements were sufficient, when they were believed, as they were by the jury, not only to attribute the accident to the premature order of the defendant, but at the same time to exonerate the -plaintiff from the charge of negligence on his part.

There was no act apparently that he could do, after the order to go ahead was given, by which he could have avoided the injury. And that the sudden movement of the timber, while he was in the position in which the evidence stated he was, would place him in immediate danger might well have been acticipated by the defendant from his ability to observe and understand the situation existing at the time, and the direction the timber in starting would naturally take.

The judgment and order are well sustained, and they should be affirmed.

Van Brunt, P. J., and Brady, J., concur.  