Bruce v. Western Pipe & Steel Co.

SHAW, J.

The defendant appeals from the judgment and from an order denying its motion for a new trial.

The action was to recover damages for injuries alleged to have been sustained by the plaintiff while in the service of the defendant. The plaintiff was working for the defendant in putting a wooden roof on a circular steel tank twenty-two feet high and forty-two feet in diameter. At the time he was injured the roof was so far constructed that there were rafters two inches by six inches in size, and over twenty feet long, extending from the edge of the tank to the center thereof. In order to do the work it was necessary for him to lay a board across two of these rafters and to stand on the

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board thus supported. While so standing, one of the rafters supporting the board on which he was standing suddenly broke, and in consequence thereof he fell to the ground and was injured. The action was to recover the damages caused by the injuries so received.

Upon the trial, after the close of the evidence, the court allowed the plaintiff to file an amended complaint to conform to the proof. There was no error in this ruling. The cause of action was not essentially changed by the amendment. It is true that the previous pleading had charged that the defendant did not adopt the proper and safer method of doing the work in which plaintiff was engaged at the time of his injury, and that the amendment at the trial omits this charge. But the former pleading also alleged that it was necessary for plaintiff to stand on the board supported by said rafters, as aforesaid, and that defendant well knew that the rafters so placed were not sufficiently strong to support him while he was doing the work referred to, and that while he was so at work, supported thereon, one of them broke, whereby he fell and was injured. In substance this is the same charge as that contained in the amended complaint filed at the trial, and upon which the plaintiff bases his right to recover.

The plaintiff was allowed to introduce in evidence an X-ray picture of a normal foot, for illustration, and to enable the jury to compare the same with the condition of the plaintiff’s foot after the injury. This was not error. The fact that the X-ray was taken in the absence of the defendant, or without his knowledge, does not of necessity affect the propriety of this evidence. It is not claimed that the picture of the normal foot was inaccurate.