99 Neb. 614 | Neb. | 1916
This is an action for personal injuries. Plaintiff recovered a verdict and judgment for $2,500. Defendant appeals.
The defendant is the owner of the Millard hotel in Omaha. The plaintiff is a scrub woman who was employed there. She had been employed in that capacity for about two years prior to the night of January 7, 1913. She usually, began work at midnight. It was her duty to scrub three cafés and other rooms, which occupied her time until morning. She was supplied by the housekeeper with a pad or pillow stuffed with curled hair upon which she placed her knees while at work. A porter was employed, whose duty it was to sweep the rooms and pile the chairs upon the top of the tables out of her way just before she began to scrub. He worked from room to room, and she followed him. A bar was connected with the hotel, in which intoxicating liquors were sold. At night,
Plaintiff testified: “Q. Did you see it before you got hurt? A. No, sir. Q. In the work that yon had done there in the dining room before this, had you ever before run across these beer tops laying on the floor as you did your scrubbing? A. I often run across one, but I always avoided it. I did not see it on this night. * * * Q. Had you seen any beer tops on the floor that night prior to the time you got hurt? A. No, sir. Q. Now, you say that you had seen these beer caps on the floor there many times; now you had not seen them there very many times, had you, Mrs. Moriarty? A. I saw them very often, and I did not pay attention because they did not bother me before this. Q. You mean to say that you saw them there on the floor many times before this night that you were hurt? A. Before I was hurt? Q. Before you were hurt? A. Yes. * * * Q. Before now, when the beer caps that you say you saw on the floor, you saw them — were they always in one place or scattered about the floor? A. I did not see them scattered about the floor. I would always see them on one spot. Q,. That is the place where you were hurt that night? A. Just right when I was finishing that I got hurt. Q. It was right at that same place where you were hurt? A. Yes, sure.”
Her testimony is that on the night of Saturday, January 7, she was just finishing one of the rooms; that she pulled the scrub pail toward her and it spattered suds' upon the floor; that she took the rag to wipe it up; that
Plaintiff produced a metal cap which she says caused the injury. It bears the name of the Metz Brewery. The evidence for the defense tended to prove that no beer had been purchased from or delivered to the Millard hotel from the Metz brewery for a long time prior to the accident. But it was not conclusively shown that a bottle of Metz Brothers beer could not have been opened in the café that night.
A number of assignments of error are made. We think it unnecessary to discuss them in detail. Her own testimony shows that Mrs. Moriarty was fully aware of the fact that beer caps were often to be found on the floor at or near the place where she says she was injured. It was the duly of the porter and her to clean and scrub these rooms. She knew that the waitress had pulled a beer cap after the porter had swept and left the room, and that it was not improbable that the cap might fall at or near the place where she was working. The proper performance of her cleaning duty seems to require'that a scrub woman should look at the floor she is cleaning and pick up any waste matter or articles which have dropped on it. It seems clear to us that in scrubbing floors it is a very ordinary and common danger that tacks, pins or other foreign substances, Avhich if knelt upon Avill produce injury, may have dropped upon the floor, especially in a public room such as a café. This Avas an ordinary risk of the employment and one which plaintiff assumed. If she had kept her knee upon the pad provided for her, the accident
The plaintiff’s injuries are, no doubt, permanent, and she deserves the sympathy 'that all right-minded people feel for such a misfortune to a hard-working woman. The accident occurred before the workmen’s compensation act was in effect. Under the law as it then stood and as laid down in the instructions, the jury were not- warranted in finding against the defendant. Nor is this court warranted in affirming the judgment, and thus taking $2,500 of the money.of defendant or his insurer for the benefit of plaintiff. Much has been said of the illegality of the conduct of defendant in selling beer after the legal hours, and, no doubt, this unlawful act had some influence with the jury. We can neither condone nor approve of this open violation of law; but, as we view the case, whether the beer was sold legally or illegally is not material.
The judgment of the district court is
Reversed.