Alexander v. Central Lumber & Mill Co.

Garoutte, J. Respondent was in the employ of appellant at its lumber-yard in the city of San Francisco. He was standing upon a high platform engaged in removing lumber from a rack, and while so engaged he fell therefrom and received serious injury. He recovered a judgment of five thousand dollars for such injuries, and this appeal is prosecuted from that judgment, and from an order denying a motion for a new trial.

Appellant’s demurrer to the complaint was overruled, and such ruling of the court is now insisted upon as error. That portion of the complaint attacked by demurrer is as follows-: “ That said platform near said rack was carelessly and negligently constructed and built by defendants, who built and constructed said platform out of light lumber and scantling, the flooring [536]of said platform not being nailed or fastened, and with* out a railing around said platform, instead of building said platform by nailing the flooring thereof, and placing a railing around said platform; and by reason of not nailing down the flooring of said platform the boards shifted, and plaintiff in endeavoring to hold himself caught hold of a piece of said gutter lumber piled on the said rack, which piece of gutter lumber broke, and plaintiff fell to the ground.” It is claimed by demurrer that the foregoing allegations of the complaint are uncertain in this, “ that it does not appear whether the alleged injury resulted from the weight and character of the lumber used in the construction of a certain platform therein mentioned, or whether it resulted from the absence of nails in the flooring of said platform, or whether it resulted from the absence of a railing around the same, or whether it resulted from the breaking of a certain piece of gutter lumber piled near said platform.”

This paragraph of the complaint does not comprise a perfect form of pleading. It does not contain that clear and concise statement of the facts constituting the cause of action contemplated by the code. At the same time, upon a close inspection of it, we do not think the uncertainty of which appellant complains really exists. Useless and surplus matters are stated therein, yet it is fairly apparent therefrom that the fall of respondent was occasioned by the shifting of the boards of the platform, and that the cause of the shifting of the boards lay in the fact that they were not nailed.

Aside from these reasons, if we concede the complaint defective in this regard by reason of uncertainty, yet that uncertainty is not such as demands a retrial of a case which has gone to judgment upon the facts. It is not in all cases where error has been committed by trial courts in overruling demurrers to complaints upon the grounds of ambiguity or uncertainty, that this court will order a reversal of a judgment based upon a trial of the issues made by the complaint and answer. The same rule applies to errors of this character as is in-