Orman v. Salvo

Citations

• 117 F. 233
• 54 C.C.A. 265
• 1902 U.S. App. LEXIS 4432

Syllabus

<p>1. Pleading—Defects—Waiver. '</p> <p>Where defendants did not, by any pleading or otherwise, before the trial, raise any question of variance in respect to their own proper names, blit in their answer adopted as their own the names by which they were designated in the complaint, it was too late upon the trial to first make that objection.</p> <p>2. Master and Servant—Contributory Negligence — Submission of Issue.</p> <p>A servant assisting in the making of an excavation was sleeping in a tent near the work, when a stone thrown by a blast fell through the tent, injuring him. In an action for the injuries, evidence was conflicting as to whether he had been warned of the blast. Held, that the question whether the warning of the blast was given plaintiff was fairly left to the jury, with instruction that if he had such warning, and failed to go to a place of safety, he was not entitled to recover.</p> <p>3. Same—Fellow Servants. _ .</p> <p>_ A servant assisting in the making of’an excavation was sleeping in a tent near the work, when a piece of rock thrown by a blast fell through the tent, injuring him. In an action against the master, it appeared ' that plaintiff was boarded and lodged in the tent by the master, and that at the time of the accident the “shift” to which he belonged was not at work. Held, that the fellow-servant doctrine had no application, inasmuch as at the time of the accident plaintiff was not a fellow servant of any of the other servants.</p> <p>4. Same—Duty of Master.</p> <p>It was the duty of the master to give plaintiff timely warning of the blast.</p>