Baxter v. Riverside Portland Cement Co.

ALLEN, P. J.

The action was on account of personal injuries claimed by plaintiff, an employee of appellant, to have been occasioned through appellant’s negligence. The complaint was filed on January 6, 1911. On February 1st following defendant Riverside Portland Cement Company filed its answer, in which it denied all of the allegations with reference to negligence and pleaded contributory negligence on the part of plaintiff. The cause came on for trial April 26, 1911. Before the jury was impaneled, defendant Riverside Portland Cement Company asked leave of the court to file an amendment to its answer, setting forth facts showing an assumption of risk. The court refused this leave and the cause proceeded to trial. After all of the evidence had been submitted, defendant again asked leave to amend its answer in the same manner as before proposed, in order that the pleadings might conform to the proof, and in connection with such request filed an affidavit to the effect that defendant did not know when it filed its original answer that the defense of assumption of risk was available, and did not learn the facts connected therewith until its attorney, on April 24th, saw a certain deposition of plaintiff wherein evidence had been given by plaintiff tending to establish that plaintiff had assumed the risk of the injury sustained by him. This leave to amend was also denied. The jury returned its answers to certain special interrogatories hereinafter referred to, together with a general verdict in plaintiff’s favor, and from the judgment

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pronounced upon said verdict, and from an order denying a new trial, defendant prosecutes this appeal.

It is appellant’s primary contention that the court erred in refusing leave to amend the answer before trial in the respect requested. Courts are and should be liberal in the allowance of amendments, to the end that the cause may be properly presented, and in many cases it has been held to be an abuse of discretion to refuse appropriate amendments through which parties might avail themselves of causes of action or defenses not properly presented by the pleadings; but courts universally require, and should require, that some showing be made which would justify the exercise of such discretionary power. In the case under consideration, when the request to amend in the first instance was made, no reason was assigned why the omission to make all of the defenses available had occurred. Nearly three months had elapsed from the filing of the answer to the time of the trial, and, without any showing, it cannot well be said that the court improperly exercised its discretionary power. When the second request was made at the conclusion of the evidence there was little necessity for such an amendment, for the record not only shows, but the motion admits, that the parties had been permitted to go into and had tried the question involved in the assumption of risk, treating it as an issue; and, in addition, at defendant’s instance, the jury were instructed fully and completely upon the matter of assumption of risk, and were told that in performing the labor at which plaintiff was working at the time he received the injuries complained of plaintiff assumed the risk of danger from all injuries incident to said work which was apparent and was appreciated by him, or would have been apparent to and appreciated by an ordinarily careful and prudent person; that an employer is not bound to indemnify for losses suffered in consequence of the ordinary risks of the business in which he is employed, and that if they believed the injuries were sustained in consequence of the ordinary risks of the business there was no obligation on the part of defendant to indemnify for said injuries. Further, that if the danger in performing the labor was apparent to and appreciated by plaintiff, or would have been apparent to and appreciated by an ordinarily careful and prudent person, and such danger contributed directly or proximately to the injury,