119 Neb. 676 | Neb. | 1930
This is an action to recover damages for personal injuries. From a verdict and judgment in favor of the plaintiff, the defendant appeals.
The first of the two errors assigned and argued is that the verdict is not sustained by sufficient evidence. The petition of the plaintiff alleges that the defendant owns and operates a grain elevator; that as a part of its machinery it maintained a dump and driveway for unloading .wagon-loads of grain, which were so constructed that a wagon loaded with grain and drawn by horses is placed upon a movable platform in such a manner that a mechanical operation depresses the rear of the wagon and elevates the front so that the grain is unloaded by gravity; that during the operation it was necessary for the plaintiff in unloading said grain to cause his horses to stand on a .narrow bridge elevated from the natural surface of the ground about two feet; that the gasoline engine operating the elevating machinery was near where the horses stood, so that the noise was. intensified at that point; that the defendant maintained two large blocks of concrete so located that, if an unloaded wagon deviated from a direct line in driving out, the wheels would strike the blocks; that on the 19th of July, 1927, while the plaintiff, at the invitation of the defendant, in the exercise of due care, was unloading wheat, one of his team stepped off the
The plaintiff introduced evidence to support his allegations of negligence as hereinafter set out. Upon the day in question, the plaintiff was delivering grain to the defendant’s elevator. He drove his wagon onto the dump for the purpose of unloading his wagon, with his team standing upon the bridge which connected the elevator with the driveway on which the unloaded wagon left the elevator. This bridge was 12 feet wide and 5 feet across and was elevated 22 inches from the ground'. The dumping device was inclosed in an annex attached to the elevator building and the bridge was just outside of this covered part. The bridge was about two feet wider than the door, but the door was not in the center of the bridge. The bridge extended about six inches beyond the door to the south. There was no rail on this bridge. It was here the plaintiff’s horse stepped off. About 10 feet to the east of the bridge were two rocks about one and one-half feet square and located about three feet from the wagon track of the exit driveway. The construction of the elevator was such that the gasoline engine which operated it had an exhaust out of the top of a small outbuilding at a place
It is the duty of the owner of property to exercise reasonable care to maintain it in a safe condition. Perrine v. Union Stock Yards Co., 81 Neb. 790. There is evidence in this case to prove that the driveway through the elevator was not safe; that there was no guard-rail provided for the bridge; that customary and proper construction requires such a guard-rail; that the gas engine for operating the machinery of the elevator was located in a place that was not proper or customary in grain elevators; that its location was such as to be likely to frighten horses, while wagons were being unloaded; that horses had been frightened in said elevator; that horses had been frightened by said engine; that rocks were laid upon the driveway so that a slight deviation from the track might tip a wagon in driving out. There is also evidence in conflict. All this raises a question of fqct as to whether or not the owner of such elevator had exercised reasonable care to maintain it in a safe condition for persons using it.
The second assignment of error is that the court erred in overruling the motion of defendant to instruct the jury “that the testimony read from the bill of exceptions at the former trial shall not be considered by the jury as substantive evidence in this trial, and that it only goes to the credibility of the witness.” Mr. Kuse, the manager of the elevator, was called as a witness for the defendant at the trial. In the course of his cross-examination by counsel for the plaintiff, he was interrogated concerning testimony given by him upon the former trial. The testimony given by him at the former trial was read to the jury for the purpose of impeachment. The witness admitted having made some of the statements attributed to him, denied others, and qualified some. The plaintiff offered in evidence from the bill of exceptions from the first trial the questions and answers showing the statement which the witness had denied. After such testimony had been introduced, the attorney for the defendant orally requested the court to direct the jury, specifically, “that this testimony read from the bill of exceptions of the former trial
Conformable with the foregoing opinion, we find no prejudicial error in the record!, and the judgment of the trial court is
Affirmed.