Abalas v. Consolidated Construction Co.

JAMES, J.

Appeal from a judgment in favor of the plaintiff and from an order denying to defendant a new trial.

The plaintiff suffered personal injuries while at work for the defendant in digging a trench for the laying of sewer-pipe. He alleged in his complaint that he was employed by the defendant and earning $2.25 per day as a common laborer at the time he suffered his injuries, and that he was at work in the performance of his duty at the bottom of the trench, which was about fifty-five feet deep, when defendant’s foreman negligently caused brick to be placed near the opening and immediately above where the plaintiff was at work; that one of the brick being dislodged fell and struck the plaintiff on the head. This allegation followed: “That by reason of the negligence and carelessness of defendant as hereinbefore set out plaintiff was hurt in his health, strength, and activity, and received a profound shock to his nervous system and received a fracture of the skull, and plaintiff is informed and believes and upon such information and belief states that the injury to his head is permanent and that he will never regain his former health, strength, and activity, and that plaintiff has lost much time and expended much for medicines and treatment and employment of physicians.” The prayer attached to the complaint asked for judgment in the sum of twenty thousand dollars. The judgment as entered upon the verdict of the jury was for the sum of two thousand dollars. No demurrer was made to the complaint. But two points are presented as ground for the contention that the judgment and order should be reversed, to wit: 1. That the complaint did not state facts sufficient to constitute a cause of action. 2. That the court erred in instructing the jury on the matter of the amount of damages which might be assessed. It is contended that as the specific amount of damages suffered is not alleged in the body of the complaint, no cause of action was stated which would entitle plaintiff to any recovery. As already noted, the complaint did contain an allegation describing in general terms the injuries suffered (and there was no special demurrer interposed),

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and the complaint concluded with a prayer for a specific amount of damages. It has been held that a plaintiff in such a ease need not allege particularly the amount of damage he has suffered, and that a complaint which contains a statement of such amount in the prayer only sufficiently states a cause of action,