Dalton, J.,
Defendant operated a trade school which had been approved as a GI school by the Pennsylvania Department of Public Instruction and the United States Veterans Administration. Plaintiff was a student in a course of carpentry at the school, having been qualified to attend the school by reason of his status as a veteran of World War II. On March 26, 1952, while plaintiff was using an unguarded circular rip saw at the school, his right hand was drawn into the saw blade, resulting in the loss-of several fingers. He brought suit and recovered a verdict at the hands of a jury. Defendant, has moved for judgment n. o. v.
The first question presented is whether the cause of action set forth in the amended complaint is barred by the statute of limitations.
In the original complaint, plaintiff set forth the circumstances of his injury and the relation of the parties and charged defendant with negligence in failing to guard the saw and in failing to give him sufficient and proper instructions and supervision. Plaintiff also alleged that defendant was required by the Act of May 18, 1937, P. L. 654, to provide adequate safeguards on the circular rip saw and other appliances used at the school. The court, on a demurrer filed by defendant, held that the Act of 1937 was applicable only to an employer-employe relationship and not to a teacher-student relationship. The court accordingly sustained the demurrer with leave to plaintiff to amend: Soley v. Nelson, 7 D. & C. 2d 12. Plaintiff then filed an amended complaint which eliminated reference to and reliance upon the Act of 1937, but which in all other respects repeated the allegations of the original complaint. [93] When the case was.called for trial, defendant objected to the introduction of any evidence upon the ground that the amendment introduced a new cause of action which was barred by the statute of limitations. The objection was overruled and the case proceeded to trial and verdict.
We are not in accord with defendant’s contention that the amendment introduced a new cause of action. “The phrase ‘cause of action’ in a trespass case means the negligent conduct which occasioned the injury”: Stewart v. Scharff, 178 Pa. Superior Ct. 629, 632. The “negligent conduct which occasioned the injury” was the same in both pleadings. There was no change in the factual averments. All that the amendment did was to eliminate plaintiff’s conclusion of law that the acts and omissions of defendant violated the Act of 1937. That is not changing the cause of action. If the facts pleaded gave rise to a cause of action for negligence, it was because defendant’s conduct fell below “the standard established by law for the protection of others against unreasonable risk of harm”: A. L. I. Restatement of the Law of Torts §282.
It is immaterial to the question of negligence whether the violated standard is established by statute or by the common law so long as it is established by either: Armit v. Loveland, 115 F. 2d 308.
“The original statement placed the claim in a class governed by certain laws, and, whether statutory or common, it was not incumbent on plaintiff to further plead the particular law violated”: Goldberg v. Friedrich, 279 Pa. 572, 576.
The fact that plaintiff went further and erroneously concluded that the applicable law was the Act of 1937 is of no consequence. The conclusion was no more than harmless surplusage. Where, as here, the controlling facts alleged in the amended pleading are the same as those set forth in the original pleading, the amend[94] ment leaves the cause of action unchanged: Goldberg v. Friedrich, supra. “ ‘When a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist . . ”: Rooney v. Maczko, 315 Pa. 113, 117, quoting from New York Central & Hudson River R. R. Co. v. Kinney, 260 U. S. 340.
The cases cited by defendant are easily distinguishable. In all of those cases, proof of new and additional facts was required to sustain the cause of action as amended. That is not the situation here. Every material fact set forth in the amended complaint was pleaded in the original one.
The second question raised by the defendant is whether judgment n. o. v. should be entered because “the doctrine of res ipsa loquitur or liability without fault does not apply to the facts of the case.”
Plaintiff never contended that either of those doctrines applied to the case. Nor was the case tried or submitted to the jury on the basis of either of those doctrines. The jury was instructed, both in the body of the court’s charge and in defendant’s points which were affirmed and read, that the mere occurrence of an accident is not proof of negligence and that the burden was upon plaintiff to prove that defendant was guilty of negligence which caused the accident.
The third question presented is whether the evidence showed any negligent acts on the part of defendant.
The complaint charged defendant with negligence: (1) In failing to guard the saw; (2) in failing to give plaintiff sufficient and proper instructions; and (3) in failing to give plaintiff sufficient and proper supervision. In examining the evidence for proof of those allegations, it is our duty to view the testimony in the light most favorable to plaintiff, who has had the verdict, and to resolve every reasonable inference of fact [95] and any conflict of evidence in his favor: Vasser v. Carlini, 180 Pa. Superior Ct. 271, 276. All of the evidence favorable to him, whether appearing in his own case or that of his opponent’s, must be taken as true, and all unfavorable to him, if dependent solely on testimony, must be rejected; Herchelroth v. Jaffe, 154 Pa. Superior Ct. 54, 55-6.
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Dalton, J.,
Defendant operated a trade school which had been approved as a GI school by the Pennsylvania Department of Public Instruction and the United States Veterans Administration. Plaintiff was a student in a course of carpentry at the school, having been qualified to attend the school by reason of his status as a veteran of World War II. On March 26, 1952, while plaintiff was using an unguarded circular rip saw at the school, his right hand was drawn into the saw blade, resulting in the loss-of several fingers. He brought suit and recovered a verdict at the hands of a jury. Defendant, has moved for judgment n. o. v.
The first question presented is whether the cause of action set forth in the amended complaint is barred by the statute of limitations.
In the original complaint, plaintiff set forth the circumstances of his injury and the relation of the parties and charged defendant with negligence in failing to guard the saw and in failing to give him sufficient and proper instructions and supervision. Plaintiff also alleged that defendant was required by the Act of May 18, 1937, P. L. 654, to provide adequate safeguards on the circular rip saw and other appliances used at the school. The court, on a demurrer filed by defendant, held that the Act of 1937 was applicable only to an employer-employe relationship and not to a teacher-student relationship. The court accordingly sustained the demurrer with leave to plaintiff to amend: Soley v. Nelson, 7 D. & C. 2d 12. Plaintiff then filed an amended complaint which eliminated reference to and reliance upon the Act of 1937, but which in all other respects repeated the allegations of the original complaint. [93] When the case was.called for trial, defendant objected to the introduction of any evidence upon the ground that the amendment introduced a new cause of action which was barred by the statute of limitations. The objection was overruled and the case proceeded to trial and verdict.
We are not in accord with defendant’s contention that the amendment introduced a new cause of action. “The phrase ‘cause of action’ in a trespass case means the negligent conduct which occasioned the injury”: Stewart v. Scharff, 178 Pa. Superior Ct. 629, 632. The “negligent conduct which occasioned the injury” was the same in both pleadings. There was no change in the factual averments. All that the amendment did was to eliminate plaintiff’s conclusion of law that the acts and omissions of defendant violated the Act of 1937. That is not changing the cause of action. If the facts pleaded gave rise to a cause of action for negligence, it was because defendant’s conduct fell below “the standard established by law for the protection of others against unreasonable risk of harm”: A. L. I. Restatement of the Law of Torts §282.
It is immaterial to the question of negligence whether the violated standard is established by statute or by the common law so long as it is established by either: Armit v. Loveland, 115 F. 2d 308.
“The original statement placed the claim in a class governed by certain laws, and, whether statutory or common, it was not incumbent on plaintiff to further plead the particular law violated”: Goldberg v. Friedrich, 279 Pa. 572, 576.
The fact that plaintiff went further and erroneously concluded that the applicable law was the Act of 1937 is of no consequence. The conclusion was no more than harmless surplusage. Where, as here, the controlling facts alleged in the amended pleading are the same as those set forth in the original pleading, the amend[94] ment leaves the cause of action unchanged: Goldberg v. Friedrich, supra. “ ‘When a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist . . ”: Rooney v. Maczko, 315 Pa. 113, 117, quoting from New York Central & Hudson River R. R. Co. v. Kinney, 260 U. S. 340.
The cases cited by defendant are easily distinguishable. In all of those cases, proof of new and additional facts was required to sustain the cause of action as amended. That is not the situation here. Every material fact set forth in the amended complaint was pleaded in the original one.
The second question raised by the defendant is whether judgment n. o. v. should be entered because “the doctrine of res ipsa loquitur or liability without fault does not apply to the facts of the case.”
Plaintiff never contended that either of those doctrines applied to the case. Nor was the case tried or submitted to the jury on the basis of either of those doctrines. The jury was instructed, both in the body of the court’s charge and in defendant’s points which were affirmed and read, that the mere occurrence of an accident is not proof of negligence and that the burden was upon plaintiff to prove that defendant was guilty of negligence which caused the accident.
The third question presented is whether the evidence showed any negligent acts on the part of defendant.
The complaint charged defendant with negligence: (1) In failing to guard the saw; (2) in failing to give plaintiff sufficient and proper instructions; and (3) in failing to give plaintiff sufficient and proper supervision. In examining the evidence for proof of those allegations, it is our duty to view the testimony in the light most favorable to plaintiff, who has had the verdict, and to resolve every reasonable inference of fact [95] and any conflict of evidence in his favor: Vasser v. Carlini, 180 Pa. Superior Ct. 271, 276. All of the evidence favorable to him, whether appearing in his own case or that of his opponent’s, must be taken as true, and all unfavorable to him, if dependent solely on testimony, must be rejected; Herchelroth v. Jaffe, 154 Pa. Superior Ct. 54, 55-6.
Plaintiff enrolled in a course in carpentry at the school in July of 1951 and attended classes until March 26, 1952, the date of the accident. For about six months he was a member of a class conducted on the second floor of the school. During that period he was taught how to make various cuts with the use of a circular power saw, about eight inches in diameter. There was no guard upon that saw and the instructor of that class, Arthur Combe, could not recall whether he had ever instructed plaintiff to use a guard on a saw of that kind. At the end of six months, plaintiff was transferred to a class conducted on the first floor. In this class, he was required to use a power-driven circular rip saw mounted on a table in such a manner that the smaller portion of the circular saw blade protruded through a slot in the top of the table. This saw was of the same general type as the saw upstairs, but was larger and of a different make. There was no guard upon this saw, and plaintiff was given no instructions concerning the manner of its use. A removable “home-made” guard of plywood and metal had been made for this saw several months before, but if the guard had ever been attached to the saw apparently it had been removed and not replaced. There was no guard upon the saw at any time plaintiff had occasion to use it, which was about a dozen times before the accident. A fellow-student, John Tehansky, testified that he had never seen a guard upon the saw and that nobody gave them any instructions concerning a guard. The instructor in charge of this class, Joseph Moran, [96] flatly admitted at one point in. his testimony that he had. not given plaintiff and the other students any instruction concerning the use. of a guard on this saw. On March 26, 1952, .at about 8:20 p.m., during a recess or “break” period,, plaintiff went to the saw to rip a board which he intended to use in the next class period. The students were allowed to use the equipment during the “break’?.period. The board was about four and one-half or five feet, long, about five inches wide, and about three-fourths of an inch, or an inch thick,. Plaintiff adjusted the saw so as to rip the board into two strips three inches and two inches wide respectively. He started the saw and, standing toward the left side of the saw, he fed the board into it by guiding it with his left hand . and. pushing with the right hand. The wider, three inch, portion of the cut was on the left side nearest him and both hands were upon this wider portion along the side of the board. When his right hand was “six inches or better” away from the blade, the board gave a sudden movement