No. 31615 | Neb. | Nov 19, 1943
Plaintiff’s amended petition sought to recover damages, for the death of his son, Emil 0. Frazier, by electrocution alleged to have been caused by an improperly insulated and defective second-hand Skilsaw negligently sold by defendant’s agent to plaintiff. Defendant answered denying generally, and alleging that death was caused by decedent’sown negligence which was more than slight. The issues were submitted to a jury which resulted in a verdict for defendant. Motion for new trial was overruled, and plain
Plaintiff cites no authority supporting his first contention. The- record and the law affirm that the trial court did not err in permitting defendant’s electrical expert witness to testify that in his opinion the ground wire on the Skilsaw had been used as such. The evidence is that on new Skilsaws the ground wire is completely insulated to the end of the wire. With this type of plug, in order to use it as a ground, the insulation must be removed from a part of the end of the wire. It may be used as a ground by putting a clamp on the end for attaching, or by wrapping, or otherwise securing the wire to a suitable ground, such as a gas, water, or steam pipe, or an iron stake driven in the ground. There is a dispute in the evidence whether the insulation was intact when the machine was purchased by plaintiff or removed for such purpose thereafter. In its present condition, however, the insulation has been removed therefrom for a distance of approximately five inches and the exposed wire is marked, bent, and twisted. The Skilsaw with ground wire attached was in court as an exhibit in evidence before such witness and the jury. In this connection, this witness did not testify hypothetically as an expert, but drew inferences from present, demonstrable facts. An applicable rule is: “Where an inference is so usual, natural, or instinctive as to accord with general experience, its statement is received as substantially one of a fact — part of the common stock of knowledge.” 32 C. J. S. 102, sec. 460. See, also, 22-C. J. 530.
Further, plaintiff’s evidence is that the ground wire was never used as such because of lack of knowledge of the danger involved. Admission of the evidence was not prejudi
The trial court properly refused plaintiff’s requested instructions No. 12 and No. 13. These instructions, and all the authorities cited to support them, treat solely with the liability of the principal to third persons in contractual relationships. In the case at bar there is involved the liability of the principal to third persons, not his employees, in the relative field of tort liability. Under these circumstances the rule is that the law imputes to the principal or master responsibility for the negligent acts of his agent or servant done in obedience to the express orders or directions of the master or within the scope of the employee’s authority or employment in his master’s business, and if those acts cause injury to third persons the law holds the principal or master liable in damages therefor. See Van Auker v. Steekley’s Hybrid Seed Corn Co., ante, p. 24, 8 N.W.2d 451" court="Neb." date_filed="1943-03-05" href="https://app.midpage.ai/document/van-auker-v-steckleys-hybrid-seed-corn-co-8038306?utm_source=webapp" opinion_id="8038306">8 N. W. (2d) 451; 1 Restatement, Agency, sec. 228; 35 Am. Jur. 959, sec. 532, and 961, sec. 533. It is not error to refuse a requested instruction if the legal principles therein announced are either incorrectly stated or inapplicable to the issues involved.
Concededly the important question involved in the case at bar is whether contributory negligence was a question of law for the court or an issue of fact for the jury’s determination. Defendant pleaded contributory negligence, and plaintiff, by appropriate instruction, requested that the trial court withdraw the issue from the jury.
There are well-established applicable rules of law. We have heretofore stated: “Contributory negligence is conduct for which plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to' protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of
Having these rules of law in mind, we have examined all the evidence for a determination of the question presented, and conclude that if defendant could under the record be found guilty of negligence which was the proximate cause of the death, a question which under the circumstances we are not required to discuss in this opinion, there is ample evidence requiring the trial court to submit the question of plaintiff’s contributory negligence to the jury.
In this connection, the evidence discloses that plaintiff, decedent’s father, a building contractor in Omaha, Nebraska, for 22 years, purchased the Skilsaw, an electrical tool used by carpenters to ease and speed the sawing of heavier timbers. Decedent was a mature man, 29 years of age, and an experienced journeyman carpenter who had worked 10 years for his father. The Skilsaw had been used by decedent and others in building houses for a period of approximately four months before the death. The tool has a drop cord 8 or 10 feet long, to the end of which is attached a two-prong socket plug like that found on any ordinary elec-
At 12:30 p. m. on the day of the accident a hundred foot drop cord, belonging to plaintiff, was inserted through a basement window of a house adjoining on the north and plugged into an ordinary hanging socket in the basement. The Skilsaw was then plugged into the end of the drop cord. This connection so remained until after the accident. The ground wire was not grounded in any manner or at any time during its use that day. The day was damp. It rained a short time before the tragedy, and the ground was wet. The accident happened thereafter when decedent picked up or used the saw out of doors. The tool, even if defective
It follows that the trial court did not err as urged by plaintiff, and the judgment, therefore, is affirmed.
Affirmed.