86 Neb. 307 | Neb. | 1910
This action is prosecuted against a master for damages flowing from the death of his infant servant, alleged to have been caused by the master’s negligence. Defendant prevailed, and plaintiff appeals.
1. Defendant contends the petition is fatally defective because the pleader did not state therein that defendant knew the work his servant was performing, at the time of his death, was dangerous. Plaintiff states in his petition that the deceased was under 16 years of age at the time of his death; was ignorant of the dangers incident to said work, and incapable, because of his immaturity, of appreciating them; that defendant, the master, “unlaAvfully, wrongfully and negligently” directed said servant to work in a cave under circumstances detailed at length Avhich plaintiff charges made the cave a place dangerous to life and limb to work in. While a direct allegation that the master knew said work was dangerous hvould be more satisfactory, we think the pleader, in effect, does charge that knowledge, and, in conformity with the spirit of the code, we shall so hold for the purposes of this appeal. Chicago, B. & Q. R. Co. v. Kellogg, 55 Neb. 748.
2. Plaintiff argues that the district court ignored section 5490, Ann. St. 1909, which provides: “No child under the age of sixteen years shall be employed in any work which by reason of the nature of the work, or place of performance, is dangerous to life or limb or in which its health may be injured or its morals may be depraved. Any parent, guardian, or other person, who having under
3. The court, at defendant’s request, instructed the jury: “The court instructs the jury that an accident is an event or occurrence which happens unexpectedly, from the uncontrollable operations of nature alone and without human agency; or it is an event resulting undesignedly and unexpectedly from human agency alone, or from the joint operation of both. It may be an event from , an unknown cause, or an unknown event from a known cause; a chance or casualty. If from the evidence in this case you believe that the death of Ganna O. Spencer was the result of an accident, then the defendant would not be liable, and the plaintiff in such case cannot recover in this action.”
A person guilty of negligence ordinarily does not anticipate the consequences of his acts or intend that any one shall be injured by what he has done or omitted to do. Men are injured in countless ways where it can be readily understood after, and it ought to have been known before, the event, that the exercise of ordinary care would have prevented the injury, and the responsible person is held liable, even though he did not design or expect the results that followed his default. Nave v. Flack, 90 Ind.
4. Defendant’s witnesses were permitted, over plaintiff’s objections, to give their opinion as to whether it was safe to dig caves in the banks of canons in the neighborhood of defendant’s farm and safe to excavate the cave where the boy was killed. The witnesses were not confined to a description of the soil in the walls of the canon, nor the results following the excavation of the caves therein, but expressed their opinions as to whether or not it was dangerous to dig such caverns. There was nothing complicated or peculiar in the facts from which the witnesses drew their conclusions, and the jurors were as well qualified to make correct deductions, after being informed concerning the facts, as were the witnesses. We think the witnesses should have stated the facts, and the jury would determine whether the work was dangerous or otherwise. Virginia Iron, Coal & Coke Co. v. Tomlinson’s Adm’r, 104 Va. 249. These witnesses stated that it was dangerous to dig a cave in the manner attempted by the deceased, and their testimony was not prejudicial to plain
Defendant insists that the evidence will not support a verdict in favor of plaintiff, but we are not justified in holding, as matter of law, that a jury could'not lawfully find defendant guilty of negligence.
For the reasons stated, the judgment of the district court is reversed and the cause is remanded for further proceedings.
Reversed.