Rupprecht v. Mills (27 A.D. 77, 1898)

O’Brien, J.:

Were this an action of negligence for injuries to a person other than a servant, there would be no ground for questioning the sufficiency of the complaint, because in the general form which has long been sanctioned as a sufficient pleading, the plaintiff states that the damages which he seeks were due to the negligence of the defendant, and that neither the plaintiff’s negligence nor that of his minor son, for the loss of whose services the action is brought, in any way contributed to the injuries; and this is followed by a statement of the cause of the injury, namely, an unguarded and improperly constructed elevator shaft on the premises of the defendant.

It is not alleged that the employee worked on the elevator shaft, or had anything to do with it. But, on the contrary, the fair inference is that he was engaged at other work in some other part of the . premises, and through the negligence of the defendant, and without fault on his own part, was injured. The averment that he was employed by the defendant was proper as showing that he was not a trespasser, but was rightfully on the premises. The principle of obvious risks is not, therefore, directly involved in the complaint, though it is possible it may arise upon the trial. The confusion, therefore, between the necessary averments of a complaint and evidentiary facts led the learned judge into the error of adjudging this complaint insufficient. Where, however, a plaintiff, be he servant or third person,.seeks to recover for injuries sustained, not in connection with the machinery or appliances with which he is furnished, or in connection with the place where he is working, and where the doctrine of obvious risks would be applicable, his complaint is sufficient if it has the usual allegations of the defendant’s negligence and the absence of contributory negligence on the part of the plaintiff.

Here, although the plaintiff counts on negligence, the defendant succeeded below in his contention that he made a mistake in so doing, and that lie should have alleged facts which would have sustained. an action upon the doctrine of obvious risks; and that, as upon such a theory, there were absent certain necessary averments, the complaint was defective. It was the plaintiff’s right to formulate his own theory, and the allegations in the complaint in support thereof being the usual and proper ones, and sufficient, it was error to sustain the demurrer thereto., and the interlocutory judgment should be reversed, with costs, hut with leave to the defendant to withdraw demurrer and answer over on payment of costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, with costs, with leave to defendant to withdraw demurrer and answer on payment.of costs in this Court and in the court below.