60 Neb. 784 | Neb. | 1900
In an action for negligence, defendant in error, plaintiff below, recovered a verdict and judgment for the sum of |11,500, for the reversal of which this proceeding in error was instituted. The case has once prior been before this court and reversed for errors in instructions given to the jury, the opinion being found in Swift v. Holoubek, 55 Nebr., 228.
The defendant, plaintiff in error, is a corporation engaged in the dressed meat business, and has in operation in South Omaha an establishment commonly known as a packing house. The plaintiff, at the time of the transactions pleaded in the petition, a boy between fourteen and fifteen years of age, was in the employ of the defendant. At the time of the injury complained of, and
It is alleged, in substance, that the plaintiff was injured by having three fingers and a part of the left hand cut off and destroyed by revolving knives or scrapers in a hog casing cleaning machine, in the operation of which he was assisting in the cleaning of hog casings; that the machine was defective, dangerous, and unfit for use, more especially in that the space between the shield covering the revolving knives or scrapers and the drum of said machine was greater than it should have been if properly constructed and attached to the machinery, thereby allowing plaintiff’s hand to be drawn into and under said shield and come in contact with said revolving knives, causing the injury as aforesaid; that if the shield had been properly constructed and attached to the nmchinery, the space between it and the drum of the machine would not have exceeded an'eighth to a quarter of an inch, when in truth and in fact the space was an inch or over.
It is also alleged that the defendant was negligent in permitting the floor about the machine where plaintiff stood while assisting in its operation to become wet, greasy, and slippery, and negligently and carelessly failed to provide and use, or cause to be used, salt or other suitable substance for sprinkling over the floor where plaintiff stood, by reason of which plaintiff slipped and fell forward, thus contributing to the injury as aforesaid.
The answer denied that the machinery was defective
It is urged that the evidence fails to establish negligence on the part of the defendant, or a reasonable inference of negligence, and for that reason the verdict and judgment can not be sustained, and that error was committed by the trial court in not instructing the jury peremptorily, as requested by the defendant, to return a verdict in its favor. To this we can not assent. An examination of the evidence convinces us that it was sufficient, not only to justify, but to require, the submission of the question to the jury as to the alleged negligence of the defendant with regard to the machinery alleged to be defective and improperly constructed, by reason of which the plaintiff suffered the injury. Without an attempt at reference to the evidence in detail on this point, we deem it sufficient to say, that with respect to the manner of the construction, arrangement, and attachment of the shield covering the revolving knives or scrapers in the machine used for cleaning the casings, the whole record is pregnant with evidence in support of the issues raised by the pleadings with respect to such matter. The theory of plaintiff’s case rested upon the proposition, that the shield was improperly and negligently constructed, and was attached to the machinery in such a manner as to make the space between the knives and the revolving drum an inch or over, and sufficient to permit the hand to
The evidence shows that in the operation of the machine, the casings were placed on a slowly revolving drum and passed under the rapidly revolving knives or scrapers for the purpose of scraping or cleaning them, and that in the performance of the work, it was the duty of one of the operators, in this instance the plaintiff, to take hold of the casings near to the shield covering the revolving knives, conduct them between two revolving rollers which pressed them in the manner of a clothes wringer, after which they dropped into a receptacle beneath. The motion of the drum was towards the plaintiff, and, as to where he stood, away from the revolving knives. In performing this work, it appears to have been usual for the operator to allow the left hand to rest on the drum near the revolving knives for partial support, and with the right hand manipulate the casings in the manner described. The shield was evidently for the purpose of protecting the operators of the machine from contact with the revolving knives, and, under plaintiff’s theory, should be placed so near the drum as not to permit the hand to slip thereunder and against the knives or scrapers. A great deal of the evidence was directed to, and centred in the one proposition .as to the proper and natural construction of the shield, and whether the one in controversy was thus constructed. The verdict of the jury can not be said to be unsupported by the evidence.
It is also contended that the verdict of the jury is excessive, as a result of passion and prejudice, and for that reason should not be permitted to stand. We may say Avith respect to this matter, that the verdict appears rather large when considered in connection with the nature and extent of the injury. It appears somewhat larger than verdicts generally returned and upheld when an injury has been received of an extent and degree equal to, or even greater than that in the case at bar. Whether it is so excessive as to make it apparent that it was the result of passion and prejudice, we will not here determine. We only say that defendant’s contention is worthy of serious consideration. In the examination of briefs of counsel, we have noticed a slight manifestation of feeling toward counsel, litigants, and witnesses on the opposite
The rulings of the court in the giving and refusal of several instructions are complained of, some of which only will be noticed. One instruction requested by the defendant and refused is as follows: “You are instructed as a matter of law, that an employee assumes the risks and dangers incident to his employment that are open, obvious and apparent, and respecting’ which he has the same knowledge and opportunity to observe possessed by the master, and in this case, you are instructed that respecting the condition of the floor and the presence of water thereon, at the place where plaintiff stood at the time the alleged injury was received, the danger of slipping, if you find there was such danger, was obvious and apparent and plaintiff assumed the risk incident to such condition; and if you find from the evidence in this case, that the injuries of which plaintiff complains were received by him by reason of slipping upon the floor, and further find that if plaintiff had not slipped he would not have been injured, then you are instructed that for such injuries defendant is not liable, in this case, and your verdict should be for the defendant.” Error is sought to be predicated on the court’s ruling regarding the instruction refused, as well as on instructions given referring to the same matter, which when taken together are especially urged as erroneous. Two instructions were given bearing upon the question of negligence with reference to the condition of the floor, which, omitting what refers to the alleged defective machinery, are as follows: “The burden of proof is upon the plaintiff in this case to establish by a preponderance of the evidence the material al- • legations in his petition "which are denied in defendant’s answer, that is, that the defendant * * * negligently
In the petition it was averred, in addition to the al
We do not think it was erroneous to refuse the instruction requested on this particular phase of the controversy. By it was excluded the idea of recovery by reason of the alleged defective machinery, which, if plaintiff’s contention were true, was the direct and immediate cause
Entertaining the views as above expressed, we regard the assignment of errors last discussed as being well taken, and although reluctant to. do so, we must again reverse and remand the cause for further proceedings.
Reversed and remanded.