81 Neb. 546 | Neb. | 1908
Plaintiff recovered a judgment against defendants for personal injuries inflicted on him in the loss of his right arm while assisting defendant Thorpe in an attempt to place a belt in position upon a threshing machine. The alleged negligence consists in (1) failure and neglect to instruct plaintiff as to the danger inherent, but not obvious, in the employment he entered; (2) in furnishing a belt that was too short and not intended for that make of machine; (3) because an engineer was not provided for the engine that operated the separator; (4) in attempting to place the belt upon the feeder and cylinder pulleys while the latter was in rapid motion and no one was in charge of the engine.
Viewed in the favorable light plaintiff is entitled to have the evidence considered, because the jurors found for him, the testimony tends to establish that plaintiff had been reared on a farm, but had picked up considerable knowledge as a machinist and had worked in a small machine repair shop in the village of Hebron. His employer avus a Seventh Day Adventist, and Maxson was out of work on Saturdays. Defendant corporation had an agent, one Kuhlman, who sold its machines in Hebron. There is nothing in the record to sIioav the scope of Kuhlman’s authority, nor does it seem to be material in adjusting the riglits of the parpes to this litigation. Thorpe Aims in the employ of the defendant corporation, the J. I. Case Threshing Machine, Company,' as “salesman and expert operating machinery, and anything pertaining to their work,” He exhibited and demonstrated his em
It is claimed the relation of master and servant cannot be created except with the consent of the master, or by his express authority, or in special instances where a servant of the master without express authority is compelled from necessity or in some exigency to secure assistance, and that the testimony does not bring plaintiff within any of said rules, nor ihe instruction properly state the law in this regard to the jury. We consider both objections together. It may be conceded that the master owes no duty as master to an officious intermeddler who volunteers his services without an invitation express or implied from the master, but this is not the case. Plaintiff may have been, and likely was, a volunteer in all that was done before Thorpe arrived to take charge of
Defendants have collated many authorities to sustain their position. As might be expected, each case presents the facts peculiar to its history, and not one parallels the instant one. Conkey v. Bucherer, 84 Ill. App. 633, it was insisted on the argument is directly in point. In that case a wagon broke down, and it was necessary to place a scantling beneath the broken axle and fasten it upon the one intact. A stranger volunteered to go under the broken wagon and fasten the scantling, and while engaged in that undertaking the team attached to the wrecked vehicle ran away, injuring the volunteer. A fellow teamster employed by the master of the driver of the wrecked wagon was standing by, and the court held there
While the admission of incompetent evidence offered by one party will not make admissible incompetent evidence offered by the other litigant, yet the record discloses that defendants, as well as plaintiff, construed the subject - one proper for experts to explain. “The scope of expert evidence is not restricted to matters of science, art or skill, but extends to any subject in respect to which one may derive by experience special and peculiar knowledge.” Zarnik v. Reiss Coal Co., 133 Wis. 290. The testimony falls within the principles discussed in Baltimore & O. R. Co. v. Schultz, 43 Ohio St. 270, and approved by us in Read v. Valley Land & Cattle Co., 66 Neb. 423. The danger lurking in the handling of the
This case seems to have been skilfully tried by opposing counsel. The trial court was fair in its rulings on the admission and exclusion of evidence, and fairly sub
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.