89 Neb. 599 | Neb. | 1911
Lead Opinion
The plaintiff’s husband, Melvin R. Gundy, was employed as a carpenter in building an elevator for the defendant. While so employed he fell and was instantly killed, and the plaintiff, as administratrix of his estate, brought this action in the district court for Dodge county, and ob
The principal question presented by the defendant is as to the sufficiency of the evidence to support the verdict. The answer was a general denial of negligence on the part of the defendant which was the proximate cause of the accident, and the allegation that the accident was caused by Mr. Gundy’s own negligence and the negligence of a fellow servant, with the plea of assumption of risk. The elevator that was being constructed was 68 by 100 feet on the ' ground. It was divided into about 70 bins of various sizes. The bin in which the accident happened was 12 by 14 feet. The walls and partitions of the elevator were constructed by laying two-inch planks, one above the other, and spiking them securely together. At the foundation these planks were 8 inches in width, and so continued to about the height of 19 feet. They were then reduced to 6 inches in width, which continued through about 30 feet more of the elevation. After that 2 by 4’s were continued for the partition wall. When the accident happened they were finishing these walls and partitions, and had reached about the height of 65 feet. In working on the walls and partitions the men stood upon stagings, which were raised from time to time as the work progressed. There were three. of these for each bin of the size of the one" in which the accident happened, and they appear to have been prepared at the time the building was begun. They were each a little less than four feet wide and a litle less than 14 feet in length. They were constructed of two-inch planks with three 2 by 4’s securely spiked. across them, and on the other side of the 2 by 4’s dressed boards were securely nailed. A bracket was fastened with spikes in each corner of the bin as a support for these stagings, and two corners of each o.f the outside stagings rested upon these two brackets. The other corners of the outside stagings and the four corners of the inner staging were supported by lugs securely fastened in the partitions. These lugs -were made of 2 by 8 timbers, 20 or 22 inches in length,
The burden of proof wás upon the defendant to show that Mr. Gundy was guilty of negligence that was the proximate cause of the accident. The jury have found that the evidence does not establish these defenses, and the evidence is not of such a nature as to require us to interfere with their finding. Was there negligence on the part of the defendant that was the proximate cause of the accident? The burden was upon the plaintiff to establish this negligence. Is the evidence sufficient to support such a finding? The evidence shows beyond a question that the stagings were suitable and were properly constructed, and there is no defect in the materials or appliances furnished by the defendant. Could defendant by prescribing a uniform method of raising and securing these stagings prevent such accidents? Were the conditions of
If the negligence of a fellow servant was the proximate cause of the accident, the plaintiff cannot recover. One of the men who had been in this part of the work from the beginning was helping to raise the staging when the accident occurred. He understood the work, and some of his evidence indicates that he was directing Mr. Gundy. Whether his negligence was the proximate cause of the accident is also a question of fact to be determined from a consideration of all of the conditions and surrounding circumstances. The evidence is not so clear and free from conflict upon these issues as to permit the court to dispense with the assistance of the jury and determine the case upon questions of law.
The defendant complains that the plaintiff was allowed to amend her petition before proceeding to the trial of the case. The petition was quite comprehensive, and stated the plaintiff’s cause of action and the facts supposed to constitute the negligence of the defendant with great particularity. The change made in the petition by the amendment was in reality a material modification of the theory upon which the action was begun. It was possible that the change might seriously prejudice the defense, but these
Mr. Miller was one of the men engaged with Mr. Gundy in raising the staging at the time of the accident. He was called as a witness by the defendant, and testified to certain matters very prejudicial to the plaintiff’s case. Upon his cross-examination, he was asked if he had written a letter to the plaintiff’s attorney in regard to the circumstances of the accident, and answered that he did not remember of doing so. He was then shown a letter purporting to be signed by him and addressed to the plaintiff’s attorney, in which, among other things, he said: “I know all about it, and no one can give you the evidence I can. * * # It will pay you to come and bring her (the plaintiff) with you, or let her come alone and I will tell her all. I think you have a case.” He then admitted that he wrote and mailed the letter. The plaintiff then offered this letter in evidence, which was objected to on the ground that it was not proper in cross-examination, and that it was incompetent and immaterial. The objection was overruled and the letter received in evidence. In this it is now insisted that the court erred. It is perhaps not usual to receive such documents in evidence during the cross-examination. However, under some circumstances this might be necessary, and the matter is generally considered to rest in the sound discretion of the trial court.
The principal objection to this evidence is that the letter does not contain any direct allegation of fact inconsistent with the evidence of the witness. The witness had testified that Mr. Gundy at the time of the accident was standing upon the lug upon which they were trying to
The plaintiff was allowed to testify that she had no other means of support than the earnings of her husband. This allegation was in the petition, and was not objected to by the defendant, but the defendant objected to allowing her to so testify, and now insists' that the ruling was erroneous. It is said that the purpose was to show that the plaintiff was left destitute, and so arouse the sympathies of the jury. Of course, it was immaterial in this case whether the plaintiff was left in poverty or with ample means. The question was how much she had lost from a pecuniary standpoint by the death of her husband. It was proper to show what Mr. Gundy’s earnings had been, and the manner in which he had supported his family. Under the instructions upon this point given to the jury by the court, it seems improbable that the jury should regard this evidence of importance except as tending to show that the earnings of Mr. Gundy were sufficient for the entire support of his family.
It is objected that the court improperly instructed the jury as to the measure of damages. In one instruction the court told the jury: “In determining such question, the jury should allow such amount as will compensate plaintiff for such support and maintenance as they find from the evidence she should have received from the said Mal,vin R. Gundy during his expectancy of life, not exceeding the sum of $5,000,” and in the next instruction, “In such case the plaintiff would be entitled to recover such damages as would compensate her for the injury that you may believe from the evidence she has sustained by reason of
The judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
Under the evidence in this case, I can see no legal reason for holding the employer liable. The opinion says: “The evidence shows beyond a question that the stagings were suitable and Avere properly constructed, and there is no defect in the materials or appliances furnished by the defendant.” These stagings were to be placed upon projecting lugs put in position in the wall by the men themselves. The plank furnished for the lugs was proper, suitable, and not defective. The evidence is undisputed that one of the lugs was set a little too far from the corner of the building by another carpenter — a fellow servant — and the corner of the platform which should have rested on it Avent down when Gundy stepped upon it.
The placing of lugs and the raising of the staging were performed by the carpenters as a part of their regular duties. Each carpenter assumed the ordinary risks of the business, among which was the carelessness of his fellow servant. Under the undisputed facts, the accident was not the result of any negligence on the part of the master, and as the law stood at that time no liability existed on his part. Since this occurrence the legislature, recognizing and realizing the unsatisfactory condition of the existing law, in the exercise of the police power, has wisely taken steps to protect workmen on such structures by the enactment of a law requiring safeguards. It is to be regretted that the act was not in force when this accident occurred. As the law then stood the employer was not liable.