46 Neb. 556 | Neb. | 1895
This action was instituted by the plaintiff as administrator of the estate of Adam C. Dehning, deceased,- to recover damages alleged to have been sustained through the death of the son of plaintiff, who lost his life while in. the employ of the defendant, and, it is further claimed,, through the negligence of defendant. It was stated, in substance, in the petition that the defendant was, on or about September 15, 1890, engaged in the construction of a viaduct extending several blocks on and above Tenth street, in the city of Omaha; that Adam C. Dehning was, on or about the date mentioned, employed by defendant to heat rivets used in fastening together certain parts of the viaduct; that such heating was done in a small forge, which was placed upon planks laid on the framework of the upper portion of the viaduct, .at a distance of about thirty feet from the ground or the surface of the street beneath; that coal was used as fuel for the forge and was kept on the ground beneath the structure; that a part of the labor to be performed by Adam C. Dehning was to procure this coal from where it was placed on the street, for use in the forge, whenever needed. The allegations in respect to the negligence of defendant were of the placing of the forge upon the viaduct in such a manner that it subjected the employe to risks of bodily injury, or endangered life, and failure to provide safe and proper appliances for use in operating the forge, or suitable safeguards, or safe and secure approaches, walks, or planks for use in passing over the framework of the viaduct in going to or from the platform upon which the forge worked by the young man Dehning was situated. It was further pleaded that by reason of the negligence of defendant, and without any fault or negligence on the part of Adam C. Dehning, on the 15th day of October, 1890, he fell from the viaduct to the ground below and.was killed. There-was an answer in which,
The counsel for plaintiff state in their brief that they present but two points for the consideration of this court: “ First — Can the plaintiff recover without first having proven that deceased called the attention of defendant to the lack of necessary safeguards, and got a promise from defendant to supply them, but received the fatal injury before they were supplied? Second — Did the trial court commit an error in taking the case from the jury because these facts were not fully proven?” The correct solution of and answer to the first depends to a large extent upon what were the duties and. rights which reciprocally devolved upon and accrued to the respective parties to the contract of employment, by reason of such contract, by entering into it, or at all times during its continuance, and especially in reference to any dangers necessarily or probably incident
In the case at bar it appears that Adam C. Dehning, the loss of whose life is the basis of the action, applied to the superintendent or foreman of the work in progress on the viaduct for employment, and during the course of the conversation at that time stated in regard to his fitness for and knowledge of the work to be performed, “ that he was a rivet heater and used to work up high, *. * * was used to the work. He didn’t say how long he had worked
We deem it best here to notice some decisions of this court in which 'a modification of the rule herein declared and applied to the existing facts, was announced and adopted. One of the cases alluded to is that of Sioux City & P. R. Co. v. Finlayson, 16 Neb., 578. It was there said: “The facts in this case may be briefly stated to be that the defendant in error had, for about two years, been in the employ of the plaintiff in error as a locomotive engineer on its railroad; that he had had charge of this particular engine for a considerable part of this time. Toward the latter part of this employment he noticed what he conceived to be evidences of weakness in that part of the locomotive known as the throat sheet. He called the attention of the proper officers and agents of the plaintiff in error to this fact, and upon examination it was thought there was no immediate danger, and he was instructed to continue with the
Another ease in which the modification of the general rule was recognized is Lee v. Smart, 45 Neb., 318. The party suitor in that case, it appears, was employed by a lumber merchant, in the city of Omaha, in the capacity of a teamster, his work being the hauling of lumber. The writer of the opinion, Post, J., after stating the modification of the rule as announced in Sioux City & P. R. Co. v. Finlayson, says: “That the case at bar is within the exception there recognized, is apparent from a brief reference to the evidence in the record. The plaintiff, according to his own testimony, discovered the day after he entered the defendant’s service, that there, were no blocks in the brake-bars of the wagon assigned to him, and asked the defendant if it was necessary to fix them, to which the latter replied that' other men had- used the wagon without being fixed, and that he [the plaintiff] could, because the streets were level. The plaintiff appears to have had little knowledge regarding the weight of the load in question, but according to the testimony of Mr. Fry, who assisted in putting the lumber onto the wagon, it consisted of 2,945 feet of green poplar, weighing upwards of 8,5,00 pounds, or more than twice the weight of a reasonable load under the circumstances. Said witness testified further, that when the wagon was about three-fourths loaded, he called the defendant’s attention to the fact that there was danger of overloading it, to which the latter replied that he wanted to put on a heavy load, as he was obliged to pay toll on crossing the bridge. The plaintiff, who, it is shown, had never crossed the river by means of the bridge mentioned, experienced no difficulty until he had started down the grade at the east end of the bridge, when, as claimed, without fault on his part, he lost control over the team in the manner and with the result above stated. The trial court, on this evidence, -correctly declined to advise the jury that the plaintiff, as a
In the case of the Sioux City & P. R. Co. v. Finlay son the evidence clearly developed that there had been a complaint or objection to the proper person or persons of the •unsafe and defective condition of the machinery, and a continuance of its use by requirement of the employer under promise that the subject of complaint should be removed ■or remedied; and in the case of Lee v. Smart it was shown that objection was made to the imperfect or defective condition of the brake to the wagon, and its further use was by direct requirement of the employer, and in both cases it further appeared that the machinery and appliances, although unsafe, were such as might be safely used by the ■exercise of reasonable skill and care on the part of the employe. The facts in these cases placed them clearly and unmistakably within a well-defined and recognized exception to the general rule, and they are not, in the doctrine announced in the decisions of them, in conflict with the rule, applied in the present case, but plainly distinguishable from .the case at bar, in which there were no facts shown which called for any modification of the general doctrine ■or made it within the exception thereto.
The opinion in the case of Kearney Electric Co. v. Laughlin, 45 Neb., 390, which was filed on the same day as the opinion in Lee v. Smart, supra, and was cited therein, and which cited,, in support of the views therein expressed, the ■case of Sioux City & P. R. Co. v. Finlayson, supra, and also Lee v. Smart, turned mainly upon the proposition that •the risks or hazards of the employment in which the plaintiff was engaged when injured were not obvious, open,
Affirmed.