Railway v. Tehan. reversed if it appears from the whole record that the overruling of the demurrer was an error which was not prejudicial to the adverse party. In that case the court quotes and enforces the provisions of Sec. 5115 Rev. Stat. "The court in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect." In harmony with this statute and upon the very reasoning of the case last cited it must be here held that the error, if any, in overruling the demurrer was not prejudicial to plaintiff in error. Again, "where an averment which is necessary for the support of the pleadings is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of this averment, then, after verdict the defective averment which might have been bad on demurrer is cured by the verdict." Heymann v. The Queen, 12 Cox C. C. 383. And see Gittings v. Baker, 2 Ohio St. 21; Howe v. Railway, 10 Circ. Dec. 220 (18 R. 606); Davey v. Miller, 1 O. S. C. D. 593 (37 Bull. 203); Gould, Pleading (5 ed.) 558. For a stronger reason this should be the law if without objection at the trial evidence is admitted to prove the allegation omitted or defectively stated. It has been held repeatedly in this state that where in the absence of a denial the allegations of a pleading are at the trial treated as denied, a verdict and judgment rendered on that theory will not be disturbed for want of such denial. If this rule obtains in the absence of the usual pleading why should it not obtain in the case of a defective pleading as well. We are of opinion that for the reasons stated and upon the proceedings had at the trial hereafter referred to, the question of the defect, if any, in the original petition is not now available to plaintiff in error as a ground to reverse the judgment and so the error, if any, in permitting the amended petition to be filed after verdict rendered, is also immaterial. Where the record of a particular case consists solely and alone of the pleadings, rulings thereon, record of the fact of a trial, verdict and judgment, and the petition is wanting in a material averment, it may be necessary to show an amendment to the petition to support a judgment thereon. But where, as here, a bill of exceptions showing all the evidence and proceedings at the trial is made by proper order a part of the record such amendment will rarely, if ever, be necessary, for, in such case, if the evidence and proceedings sustain the recovery an amendment 30 O. C. C. Vol. 26 Logan County. will be implied even on error; but if the evidence and proceedings do not sustain the recovery, the fact that an amendment was allowed and filed will not aid the verdict or judgment. The bill of exceptions (a part of the record) shows that at the trial and without objection plaintiff below offered evidence tending to prove that on December 29, 1900, plaintiff then seventeen and one-half years old entered the service of defendant at said shops as a rivet heater, his duties being to heat rivets, pass rivets and do other odd jobs around the shops, such as holding lights for boiler makers; he continued in this employment until about January 1, 1902, when he was advanced to the position of helper by the general foreman of the shop, the duty of a helper is to assist the boiler maker in whatever the latter has to do but "he is not supposed to learn the trade at all." Plaintiff continued in the position of helper until July 21, 1902, when he was ordered by defendant's foreman to hold a side set, which is a part of a regular boiler maker's work. He had never before performed that kind of labor, had no knowledge of its danger, and neither defendant or any of its agents or servants nor anyone else gave him any instructions as to how the work should be done and no one informed him as to the danger incident to that kind of work. The side set is a tool used in cutting the heads off boiler rivets when it is desired to remove the rivets from a boiler. It is something the shape of a long-bitted hammer, one edge of which is beveled something like a cold chisel and the other end shaped like the poll of the ordinary hammer. It is fitted with a wooden handle about two and one-half feet long. When in use the cutting edge of the side set is held against a rivet by the boiler maker, and the helper with a sledge hammer strikes the poll of the side set and then the head of the rivet is partly cut and partly broken off, when the rest of the rivet is driven through into the inside of the boiler and the rivet thus removed. The purpose of the side-set handle is to enable the boiler maker to stand at a point where he will not be in danger of being struck by the helper's sledge. On July 21, 1902, plaintiff, with Ivory as his helper, worked eight hours in removing rivets from a boiler and in that time they removed all the rivets on one side of a boiler. On July 22, 1902, they continued the work on the other side of the boiler from the time of commencing work until eight o'clock in the morning. They were then ordered to and did perform some other work until nine o'clock when they returned to the work of removing rivets. While removing the fourth rivet after their return the injury of which plaintiff complains was sustained by him. At this time Ivory's hands were sore and he was striking quite rapidly and sometimes would hit the head of the side set Railway v. Tehan. squarely, sometimes on the edges, and sometimes missed it altogether. The proper and safe manner, as plaintiff says he has since learned, for Ivory to strike was slowly and squarely on the head of the side set. When the head of the fourth rivet was nearly off a sliver of it flew off and struck plaintiff in the eye, destroying his sight and so injuring the organ that it had to be removed. Plaintiff never requested that he be put at this work. As a rivet heater plaintiff was paid eight cents per hour, as a helper fourteen and one-half cents per hour until the middle of July, 1902, and after that plaintiff and all other helpers were paid fifteen cents per hour, boiler makers were then paid twenty-four to twenty-six cents per hour. son. The work of removing rivets in the manner above described is dangerous to the person holding the side set. The danger consists in the fact that when the head of the rivet is being removed it or a part of it may fly in any direction and hit said person. To obviate this danger as far as possible skill is required on the part of the person wielding the sledge, to know with what force to strike when the head is nearly off; skill is also required on the part of the person holding the side set to know the proper position-the angle at which the tool should be held. And with this skill on the part of both these persons the safety of the person holding the side set requires that he hold a screen-a broom or cloth or some such article between him and the rivet to guard his perPlaintiff when directed to do this work did not know and was not informed as to the position in which to hold the side set; did not know and was not informed as to the necessity of a shield, and although while employed in the shop, he had noticed persons using the side set, he had never observed the same closely or more than casually. Ivory had never performed or assisted in this work before July 21, 1902; he had no knowledge of its dangers; his ability to wield the sledge, so far as skill is concerned, is such as he derived from driving spikes in railroad ties in railway repairs or construction, and this fact defendant knew and plaintiff did not know. Said Ivory was for six years an employe of defendant as a section hand, but whether immediately before his employment in the shops does not appear from the evidence. The want of skill of plaintiff, of Ivory, and the absence of a shield may each and all have contributed to cause the injury. Assuming that there was a conflict of evidence upon all these points and assuming that the evidence admitted without objection supplied omitted material averments of the petition, we are of opinion that the case so made was and is one for the jury. Defendant below presented eleven special requests to charge. These Logan County. were all in terms refused. Most of them set out a certain set of circumstances under which the plaintiff would not be entitled to recover. The court, and we think very wisely and properly, contented itself with a statement of the facts that if proved would authorize a recovery and stated in effect that if these necessary facts were not proved the verdict should be for defendant. The charge is clear, concise and correct. The jury by reason of its clearness could understand it; of its conciseness could have remembered it, and of its correctness could not have been misled as to the law. The benefit of the special requests so far as they are correct was secured to defendant by the general direction of the court to find for defendant if the material and necessary facts upon which plaintiff's right to recover depended were not each and all of them proven. The point upon which we have had some hesitation was the amount of the damages. But we discover that this is not stated as a ground of the motion for a new trial nor specially assigned as error here. This young man has been deprived of one eye by a violent injury. It is common knowledge that the sight of the other may thereby be impaired or lost. He was entering upon a career as a mechanic for which he had some aptitude. He may be compelled to follow other lines, or, if he continue in the same line, will or may be less efficient and will run a double hazard of total loss of sight in its pursuit. We conclude that all these facts were as well known to the jury and the trial judge as to us, and that in fixing the damages under the circumstances of this case they had assurance of arriving at a correct result equal in every respect to us, and so, particularly when not requested, we will not hold that the damages are excessive. It is but proper to add that after reflection and consideration we do not believe that the damages are excessive. We find no reversible error in the record and so the judgment is affirmed at costs of plaintiff in error. Judgment for costs and execution awarded and cause remanded to the common pleas for execution. Day and Norris, JJ., concur. Monnett v. Railway. REMOVAL OF CAUSES-COURTS-CORPORATIONS-RECEIV ERS-MORTGAGE-EQUITY. [Marion (3rd) Circuit Court, January Term, 1904.] Day, Mooney and Norris, JJ. JOHN T. MONNETT V. COLUMBUS, S. & H. RY. ET AL. 1. RIGHT TO INSIST THAT CASE IS REMOVED TO FEDERAL Court not Lost BY MAKING DEFENSE OR APPEALING. Defendant's right to insist that the case has been removed into the federal court, is not lost by his making a defense in the state common pleas court after its refusal to surrender jurisdiction of the case, nor by appealing the case to the state circuit court. The question is one of jurisdiction of the subject of the action, and will be determined by the state circuit court on the appeal, whether insisted upon by defendant or not. 2. NO FEDERAL QUESTIONS INVOLVED ALTHOUGH FEDERAL RECEIVER MADE PARTY, WHEN. No federal question is involved in an action against a railroad company, in the hands of a federal court receiver (who is also made a party defendant), for the cancellation of certain evidential writings, material to the ultimate rights claimed in the action, which are alleged to have been fraudulently obtained from plaintiff; or, in an action commenced against it, as a purchaser at foreclosure sale, to quiet title, or to declare a forfeiture of the land so purchased, in favor of plaintiff, and which plaintiff had previously conveyed to another railroad company which mortgaged it, and which was subsequently sold to defendant company under an order of sale issued by the federal court wherein the foreclosure proceeding was had; it not appearing that the controversies are sepa. rable as to the receiver, even though it be assumed that a federal question was involved as to him. 3. CORPORATION NOT DISSOLVED BY APPOINTMENT OF RECEIVER COMPANY MAY STILL BE SUED. A railroad corporation is not dissolved by the appointment of a receiver, nor does the title to its property vest in him; and while no decree or judgment could operate to disturb his custody or management of the company's property, yet the company can be sued after his appointment as well as before, and a judgment, as between the parties, would be valid and binding. 4. MORTGAGEE ACQUIRES NO GREATER RIGHTS THAN MORTGAGOR. A mortgagee of a railroad company's property acquires no greater interest therein than that possessed by the company itself; and an order of sale of the premises issued in a foreclosure proceeding is, as a general rule, likewise limited. 5. EQUITY WILL CANCEL AND REFORM RELEASE OBTAINED BY FRAUD. Generally, equity will refuse relief to a party seeking to rid himself of a contract solely on the ground that its terms are not what he supposed them to be; but when fraud is charged and proved upon the defendant in reading the contract, or in stating the nature of its terms, relief will be granted, and the instrument reformed. Hence, plaintiff will be relieved from the "release" feature of a document executed by him which is in effect both a receipt for a pass, and a release to a railroad company of its performance of certain conditions assumed by it in a conveyance of real estate, when it appears that an agent of the company came and ten |