Silveira v. Iversen

TEMPLE, J.

This appeal is from an order refusing a new trial. The action is for damages for personal injuries, and plaintiff recovered a verdict for two thousand dollars.

The first point made relates to the sufficiency of the complaint, which was not demurred to.

Plaintiff was employed by the defendants upon a schooner which was engaged in carrying freight in the coasting trade, its usual run being between San Francisco and Iverson’s Landing in Mendocino county, and it was while on its voyage from San Francisco that plaintiff was' injured. The complaint charges “that it was the duty of defendants to supply the schooner with good, safe, and strong ropes, tackle, and sailing apparatus, but that the defendants, disregarding their duty in that behalf, provided and used an old, worn-out, rotten, and defective reefing pennant with which to reef the mainsail, of which they had notice.” And while, in proper obedience to orders, plaintiff “was assisting in reefing the mainsail in the usual and proper way, by pulling at the reefing pennant in the usual and proper way, the said reefing pennant broke.” And “when said reefing pennant broke, as above stated, plaintiff fell backward from the roof of the cabin,” and was injured. The point of these objections to the complaint, so far as they seem to have any force, is that it is not averred that the rope broke because it was defective, or that the breaking of the rope caused plaintiff to fall. It is alleged that the rope was defective and broke, and that when it broke plaintiff fell. No causal relation between these facts and occurrences is alleged.

The criticism upon the complaint is just, and, if the points had been made upon a special demurrer, would have been sus

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tained. But after verdict the pleading must he deemed sufficient to support the judgment.

The case of

Smith v. Buttner,

90 Cal. 95, is not authority for the defendants. In that case the court granted a motion, made by the defendant for judgment upon the pleadings, which motion was based upon the proposition that the complaint did not state a cause of action. The action was by a tenant against her landlord. She charged that her landlord failed to provide a proper entrance to the house, and, in endeavoring to pass over it, without any lack of due care on her part, she was injured. If her injury resulted from the fact that the premises were out of repair, and she knew of the improper condition of the premises, her remedy was to act under sections 1941 and 1942 of the Civil Code. The house _was being raised while she occupied it, and the complaint did not show that the injury resulted from the work being done.