96 Neb. 147 | Neb. | 1914
From a judgment of the district court for Douglas county, in favor of plaintiff, in the sum of $8,000, in an action for personal injuries, defendant appeals.
Defendant is a copartnership, and had a contract for the erection of the Union Pacific headquarters building in the city of Omaha. Plaintiff was an iron-worker, belonging to what was known as the “derrick gang.” The building is of steel construction. When the steelwork for the second floor was in place, defendant ordered from two reputable local lumber dealers about 65,000 feet of No. 1 pine and fir lumber, consisting of planks 12 inches wide, three inches thick, and 20 feet long. The planks were brought to the building in wagons. They were used for temporary flooring over the steelwork as it was erected and put in place. They were used in this manner on every alternate floor. They were first used on the second floor.
The negligence charged by plaintiff in his petition is that it was the duty of the defendant to provide plaintiff with a safe place to work, “and to provide, select and use sufficient, strong, safe and secure planks to cover over the fourth floor of the iron framework of said building for the plaintiff and other workmen to stand and walk upon in the performance of their duties on said building as structural iron-workers, but, disregarding its duty, the said defendant carelessly and negligently failed to provide and furnish sufficient, strong, safe and secure planks to cover the fourth floor of said iron framework of said building, and carelessly and negligently, selected, provided, furnished and used as one plank extending across one of the eighteen-foot panels on said fourth floor a defective, unsafe, and insecure, brittle, sappy, cross-grained plank with a knot therein near the middle portion for the iron-work
The answer (1) admits the copartnership character of defendant, the work in which it was engaged, that plaintiff was in its employ, that he received an injury on the date named, the nature and extent of which was to the defendant unknown. (2) Denies every allegation in the petition not admitted in paragraph 1. (B) Sets out some of the facts in relation to the use and handling of the planks, and alleges that the negligence, if any, in the selection, laying and using of the planks, and more particularly the one alleged to have broken, was the negligence of plaintiff and fellow servants of plaintiff, and not the negligence of defendant. (4) A plea of contributory negligence. (5) “Further answering said petition, this defendant alleges that the employment on which the plaintiff was engaged at the time of the said accident was inherently a dangerous one, and that the accident from which plaintiff suffered was one of those risks incident to the occupation and employment in which he was engaged, and was well known to and recognized and assumed by him.” The reply is practically a general denial.
Defendant assigns nine errors, which are grouped and discussed in the brief under three subdivisions, which we will consider in the order in which they appear in the brief.
1. “The defense of 'assumption of risk’ was properly pleaded and proved, and should have been submitted to the jury.” This subdivision is based upon the fifth paragraph of the answer quoted above. It is argued by counsel for plaintiff that the defense of assumption of risk was not presented by the paragraph of the pleading quoted. We deem it unnecessary to decide this point, for the reason that, as we view the case, even if a proper affirmative
3. “The verdict is excessive.” The plaintiff at the time he received the injury was 25 years of age. He had been following the work of an “iron-worker” for about four years. At the time of the injury he was earning $4.50 a day. The uncontradicted evidence shows that prior to receiving his injuries he was a strong, hearty man. In the light of the injuries as. shown by the evidence contained in the record, a portion of which is above outlined, we are unable to say that the verdict was excessive.
Finding no reversible error in the record, the judgment of the district court is
Affirmed.