108 Neb. 74 | Neb. | 1922
Plaintiff brought this suit against defendant under the federal employers’ liability act. At the conclusion of the testimony, on motion of defendant, the court instructed the jury to return a verdict in favor of defendant. From the judgment entered on the verdict, plaintiff appeals.
The facts alleged in the petition and supported by plain
On tbe day of tbe injury, plaintiff, bis fellow workmen, and foreman bad transferred an interstate shipment of steel from a “bad order car” to a “good order car.” -When this job was completed there was then no other car of material at tbe gantry ready for immediate transfer, but there was in tbe yards awaiting such transfer a carload of poles. This was likewise an interstate shipment. In making tbe transfer of freight by means of tbe appliance known as a gantry tbe men sometimes made use of ropes, chains or cables. For some time prior to plaintiff’s injury there bad been no cable in use, but there was in tbe tool bouse, situated where tbe men were employed, part of a wire cable that bad formerly been used on tbe machine itself. Tbe foreman gave directions to bis crew of workmen, which consisted of plaintiff and three fellow workmen, to prepare this old cable for use in tbe 'transfer of tbe car-load of poles. In obedience to this order tbe men took tbe cable from tbe tool bouse and cut therefrom a section of tbe required length, 20 or 30 feet; clamps, or U bolts, were procured and a loop was made at each end of tbe cable sling. As thus made up, at each end of this cable there was left a rough end, each separate strand of tbe cable being exposed. This condition endangered tbe bands of any workman who might handle tbe cable. In order to obviate this danger, cloth was procured with
According to plaintiffs testimony lie was in total ignorance of tlie dangerous character of the article he had been handed by his fellow workman. The copper cylinder is described as about one and one-half inches in length and one-fourth of an inch in diameter. Plaintiff testified that he held the cylinder in his left hand while with his right hand he pulled upon the crumpled, twisted pieces of wire for the purpose of straightening them. The cylinder slipped from his left hand and with the swing of his right arm it struck the steel rail on which he sat and the impact caused it to explode. The explosion was of such force that it indented the surface of the steel rail, and destroyed the sight of plaintiff’s eyes. It may be taken as established, or conceded, that this cylinder with its attachments was an electric detonator generally used in exploding dynamite. The evidence shows that the explosive matter in detonators of this character consists of mercury fulminate; that this is pressed into the lower end of the cylinder, then a similar amount of powdered fulminate is put in. The ignition apparatus is then inserted and the ends of the wires imbedded in the last fulminate; and the cylinder is then filled with melted sulphur. Although these detonators are designed to be exploded electrically,' they may be exploded by heat, by a blow or shock of sufficient intensity, or by friction. There is evidence offered by defendant calculated to dispute the testimony of plaintiff as to the cause of the explosion, but the explosion itself is not denied.
Plaintiff contends that defendant was negligent in failing to provide the necessary wires, repairs, tools and machinery for the proper equipment and operation of the machine with which plaintiff worked; that the foreman was negligent in failing to inspect properly the Avire picked up in the coal car by plaintiff’s fellow workman, and that this wire and its explosive attachment was negligently given to plaintiff by his foreman and fellow workman as a part of the tools and materials with which he was to work.
In the present state of the record it does not appear necessary to determine whether defendant was guilty of actionable negligence in failing to provide suitable wires, repairs, tools and machinery for the proper operation of the gantry.. Passing over these allegations of negligence for the present, let us mention what appears to have been palpable negligence on the part of the fellow workman (and Ms negligence was the negligence of defendant) in handing this explosive to plaintiff. The fellow workman was older in years, and more experienced in service, than plaintiff; he knew that the wire was not originally designed for the work to which it was being put; that it had not been regularly furnished from the tool house or supply store. He saw it in the empty coal car, took it therefrom, discovered the copper cylinder, and testified that in his
Plaintiff did not know at the time he was given this dangerous instrumentality that it had been picked up in an empty coal car; he did not know that his fellow work: man had seen the powdered substance with which the cylinder was filled spilling therefrom as a result of the twisting and pulling of the wires. He received no warning of any kind. Indeed, his fellow workman testified that when he passed the cylinder to plaintiff he did so with the statement that it looked like a firecracker, a remark well calculated to put plaintiff off his guard. However, plaintiff does not appear to have heard the remark, and the '■lost that can be said definitely is that it was placed in plaintiffs hands without warning. The foreman expressly denied that the wire was called to his attention, or that he had been asked to inspect it, or that he gave any general order to procure it. Defendant offered the testimony of experts, and each testified that in his opinion the detonator could not be exploded in the manner described by the plaintiff. But it may be noted that each of these witnesses gave his testimony on a question presupposing the detonator to be in the same condition as when it left the factory. The changes, if any, that may have taken place by reason of the treatment given the detonator in question do not appear to have been taken into account. From the expert testimony furnished by defendant’s witnesses, and from the official government bulletins in evidence, we learn that detonators such as the one described, con
Defendant also offered testimony from which it may be argued that plaintiff struck the cylinder with a hammer. He is said to have had a hammer in his hand very shortly before the explosion. What is said to be an exploded detonator is also offered in evidence. This exhibit was picked up near the scene of the accident shortly thereafter. It consists of a mutilated copper cylinder and a very small wire, or wires, the ends of which project beyond the cylinder less than an inch. Assuming that this is the exploded cylinder which caused the injury, it is argued that it shows that the wires had been cut off close up to the cylinder, and, therefore, plaintiff could not.have been pulling upon the wires to straighten them and use them in the defendant’s business, but that he had turned aside from the master’s business and was attempting to gratify his idle curiosity in an effort to take the cylinder from the wires. Whatever force there may he in this argu
“In determining whether a peremptory instruction was justified, the party against Avhom the verdict is directed is entitled to Iiua-c eArery controverted question of fact resolved in his favor, and to have the benefit of every inference that reasonably can be deduced from the facts in eAÚdence." Schmelzel v. Leecy, 104 Neb. 672.
Defendant filed a special appearance objecting to the jurisdiction of the court over the person of defendant and over the subject-matter of the action, and moved the court to quash the summons theretofore issued, on the ground that certain general orders of the director general of railroads set out as a part of the motion provided that suits against the director general of railroads, as authorized by general order No. 50-A, should be brought in the county or district where the plaintiff resided at the time the cause of action arose. This objection was overruled. It was again urged in the answer, and, by brief filed out of time by leave of court, it is sought to be urged now. But no cross-appeal from the ruling of the trial court was prosecuted by defendant, as required by the rules of this court, and appellee cannot be heard to urge this point now. See subdivision (b) of rule 18 of this court. 94 Neb. XV.
In the briefs on either side counsel have raised many issues not necessary to a determination of the real issues, and in the preparation of this opinion we have not under
The judgment of the district court is reversed and the cause remanded.
REVERSED.