83 Neb. 713 | Neb. | 1909
The village of Syracuse had for some years operated a system of waterworks, and in 1904 began the manufacture of gas for municipal use and for sale to private consumers. The pump for supplying water was installed in a pit in the pumping station, and a large tank in which to store gasoline for the manufacture of gas was buried in the ground outside, but near the pit of the pumping station. The plaintiff was a helper employed by the village water commissioner to, among other things, fire the boiler and manage the engine and pumps while pumping water. August 24, 1904, in the execution of his said duties, he descended into the pit to start the pumps. There was a gas burner placed in this pit to light the same at night and during dark days. The plaintiff detected, as he says, a slight odor of gas, and, thinking the fixture might be leaking, lighted a match to test the same. A violent explosion followed, in which plaintiff was severely burned, suffering serious and permanent injuries to his health, strength and ability to labor. He brought this action, alleging that the explosion was caused from gasoline which had leaked from the storage tank, and, percolating through the earth, penetrated the walls of the pumping pit, as the result of the negligence of the defendant in the installation of said storage tank. There was a verdict for the plaintiff, and from a judgment thereon the defendant appeals.
1. At the close of plaintiff’s case the defendant asked the court to direct a verdict on the ground that the undisputed evidence failed to show the defendant guilty of neg
2. It is argued that the plaintiff’s own evidence established contributory negligence on his part, and that for that reason the court should have directed a verdict for the defendant. It is claimed that the act of the plaintiff in lighting the match constituted such contributory negligence. While the act of lighting a match where the presence of . any considerable quantity of inflammable gas is suspected would be carelessness of a culpable kind, it is in evidence that such is the ordinary way of detecting slight leakages from fixtures or burners. The plaintiff testified that he only discovered a slight odor of gas, which he supposed was produced by a small leak in the vicinity of the fixture. The facts therefore presented a case peculiarly suitable for submission to the jury, which is ordinarily the judge of what constitutes negligence and contributory negligence, and which should not be constrained by the court except in cases so plain that different minds might not honestly draw different conclusions.
3. It is argued by defendant that, if a servant agrees to undertake employment in a business conducted in a certain way, he thereby assumes all the obvious dangers and hazards of such business, and ..that therefore the plaintiff in this case assumed the risk of the injury which he suffered. It is not pointed out how the presence of gasoline, which had escaped from a leaky and improperly installed tank and percolated through the earth to the pumping pit of the waterworks, is one of the ordinary and obvious dangers and hazards of operating the pumps of said waterworks. Such danger appears to us neither ordinary nor obvious, and it was not, therefore, assumed by the plaintiff.
á. The defendant insists that the relation of master and servant did not exist, and for that reason there should have been no recovery. The charter act under which the defendant was organized provided for the appointment of a water commissioner, concerning whom it is enacted that
5. The defendant assigns as error the action of the court in. overruling objections to certain hypothetical questions that -were propounded to Mr. Munn, a civil engineer, and to Mr. Mount, a boiler manufacturer. It is objected that these questions did not correctly assume the facts which the evidence introduced established or tended to establish. The defendant does not point out- any fact included in these questions which should have been omitted, nor does it specify any fact omitted which should have been included. It therefore fails to present any question to the court for its consideration. We have, however, examined these questions; but -have been unable ourselves to discover any defect which is open to these objections.
6. Objection was made to the seventh instruction, given by the court on its own motion, on the ground that there was no evidence to “show what caused the leakage or that there was, in fact, any leakage.” This is sufficiently disposed of by what we have already said in reference to the refusal of the court to direct a verdict.
The objection to the eighth instruction, that it assumed the existence of the relation of master and servant, is disposed of by paragraph 4 of this opinion.
The eleventh instruction told the jury that they had a right to allow the plaintiff compensation “on account of his impaired earning capacity in the future.” This is complained of as allowing the jury to come into the. field of mere probability and conjecture. The injuries suffered by the plaintiff were of a most serious nature and perma
Other objections are made to other instructions, and to the refusal of the court to give various instructions requested by defendant; but they raise no questions not hereinbefore determined, and we do not deem it necessary to consider them in detail.
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.