Richards v. City Lumber Co.

McLean, J.,

delivered the opinion of the court.

Appellant was in the employ of the appellee in appellee’s saw and planing mill, and while so employed was *689 injured, and this suit is brought to recover for the injuries sustained. The count in the declaration is that it was the duty of the master to provide the plaintiff with a reasonably safe place in which to do the work assigned him, and to furnish the plaintiff with suitable, safe, and sufficient machinery and appliances with which to do the work, but that the defendant did not perform its duty in this respect; and the declaration further alleges that the work enjoined upon plaintiff became, without the knowledge of plaintiff, perilous, dangerous, and hazardous, by reason of the fact that the plaintiff was put to work in the'planing mill, which was worn, old, and so defective that, when a heavy piece of lumber was put in it to be planed, it put so much and unusual force upon the belting as made the belt to break, and that the belt by which the machine was run was old, worn, defective, and worthless, and defectively laced, and by its inherent weakness and lack of strength the belt could not bear the strain put upon it in operation of the machine, and that consequently, as a result of this defective condition of said machine and belting, plaintiff was injured in the following manner, to wit: He was placed at work feeding the machine, and was working around it with reasonable care in the regular discharge of his duties to his master, when the belting and the end of it flew back and struck him with great force in the face, and destroyed his left eye and its sight forever, and, that, by reason of the negligence of the defendant in failing to furnish the plaintiff with reasonably safe appliances and machinery aforesaid, said plaintiff lost his left eyesight, etc.

We have been so particular in describing the cause of ■action as set out in the declaration, because the allegations of the declaration.are material for the proper consideration of the question presented. There was some evidence to the effect that one Skean was the superintendent of the mill, and that in his absence one Lucius *690 Magee was the vice principal of the defendant, and that at the time plaintiff was injured he (Magee) was in charge of the planing machine, performing the duties of the superintendent; that the machine choked; that Magee saw the said machine choke, or hy the exercise of reasonable care could have seen it, and failed to direct plaintiff how to use the machine. The chief contention of the appellant is the refusal of the court below to grant for him instruction No. 4, which the court declined to do. That instruction is as follows: “The court instructs the jury, for the plaintiff, that if they believe from the evidence in this case, that Lucius Ma-gee, in the absence of Skean, was by the defendant authorized to perform the duties of superintendent, and at the time the plaintiff was injured he was in charge of the planing mill, performing the duties of the superintendent, and saw the machine choke, or hy the exercise of reasonable care could have seen it, then it was his duty as superintendent in charge to direct the manner of handling the machine; and if they believe from the evidence, with knowledge of the trouble, he failed and neglected to direct the handling of tht machine after it choked, and he left the plaintiff to his own resources, and that the plaintiff was exercising reasonable care and caution, and was injured hy the breaking of the belt, which was defective, or defectively laced, then they will find a verdict for the plaintiff, although they may believe the lumber being passed through the machine was too large and choked the machine.”

Without passing upon the correctness or incorrectness of this instruction, a sufficient, answer to the contention of appellant is that the princple invoked in the instruction is not-the ground upon which the plaintiff sought to recover in his declaration. The declaration, as hereinbefore stated, simply charges that the defendant failed to provide the plaintiff with a reasonably safe place in which to work, and failed to furnish him with safe and *691 sufficient machinery and appliances with, which to work, and that the injury sustained was caused by the breaking of the belt, which was worn and defectively laced. A mere inspection of the declaration and of the instruction refused demonstrates the correctness of the court in declining to give the instruction. A party cannot make out one case in his pleading and a different one by his evidence. The case of Bradford v. Taylor, 85 Miss. 409, 37 South. 812, which appellant relies upon, is not in point, because the proposition upon which the plaintiff recovered was set forth in the declaration, and there was no variance in the evidence and the allegations in the declaration. The instant case was properly submitted to the jury, and the instruction directed the findings of the jury to the issues presented under the pleadings.

It is urgently insisted that the court erred in giving an instruction to the defendant to the effect that contributory negligence was a defense; and appellant contends that contributory negligence is not a defense, under chapter 135 of the Laws of 1910. The facts in this case are that the injury occurred on the 30th day of March, 1910, and the suit was instituted on January 12, 1911, and chapter 135 of the Laws of 1910 was approved and took effect on April 16, 1910. In other words, the contention is that this act of the legislature had a retroactive effect.

The rule is fundamental, in the construction of statutes, that they will be construed to have k prospective operation, unless the contrary intention is manifested by the clearest and most positive expression, and, further, that such a construction should be placed upon the statute in order to- preserve, if possible, its constitutionality; that the legislature has no power to take away vested rights, in order to create a cause of action out of an existing transaction, for which there was at the time of its occurrence no remedy; nor can it destroy a *692 valid defense to an action existing before tbe enactment of the statute. These principles are fundamental, and require the citation of no authorities to support them.

The act reads: “In all actions hereafter brought.” It may be that this language is sufficiently broad to cover causes of action arising prior to the passage of the act; but our duty is to so construe the act to preserve, if possible, its constitutionality, and, since it is not manifest that the purpose of the legislature was to embrace prior causes of action and thereby destroy vested rights, we must construe the act so as to limit its operation to causes of action arising subequent to its passage. The law is: “Statutes not expressly made retrospective in terms are otherwise construed, if possible.” 8 Cyc. 1022, and authorities cited.

We see no error in the record, and it is affirmed.

Affirmed.

Suggestion of error filed and overruled.