128 Neb. 835 | Neb. | 1935
This is a negligence action, brought by a Thomas county ranchman for damages caused by a prairie fire alleged to have been started from matches or cigarettes used by defendant’s employees.
Earl F. Triplett brought an action against the Western Public Service Company and the Henningson Engineering Company for damages caused by a prairie fire, which started about noon March 9, 1930, and burned over 500 acres of plaintiff’s valuable hay land. Plaintiff alleged that such fire greatly reduced the fertility of the land, so that it produced no hay during the years 1930 or 1931, as the roots of the natural grass growing thereon were ruined by said fire, and the soil, which is of a light, sandy nature, without the protection of the grass which had been burned off, became loose and shifting, and large blowouts and sand-pits formed, causing injury to the land itself; that, in addition, the fire burned 60 tons of hay which had been cut and bunched on said land.
Plaintiff alleged that the Henningson Engineering Companjr hired a large number of men, and that said men and their superintendent and foreman were addicted to smoking while engaged in the work, such fact being well known to the defendant and its officers; that the grass on said land was parched, dry, and highly inflammable, where fires were easily started and difficult to control or extinguish; that while so engaged in constructing the transmission line, employees of the Henningson Engineering Company carelessly and negligently threw burning matches and cigarettes into the dry grass and weeds, setting a fire which spread over the entire tract owned by the plaintiff, and plaintiff asked damages in the sum of $2,100.
The Henningson Engineering Company alleged that its principal place of business was in Omaha; that it had no agent in Thomas county, and that it was not jointly liable with the codefendant, Western Public Service Company, but was an independent contractor, constructing a certain transmission line between Seneca and Dunning for the
The defendant presents as its first error of law the jurisdictional objection raised by its special appearance and demurrer., and also in the answer, that it was not suable in Thomas county, Nebraska. The trial court overruled the contention of the defendant, holding that under section 20-401, Comp.. St. 1929, actions to recover damages for any injury to real estate shall be brought only in the county where such real estate is situated, and that the early cases cited by the defendant, Delaney v. Errickson, 10 Neb. 492, and Burlington & M. R. R. Co. v. Beebe, 14 Neb. 463, were decided prior to the enactment by the legislature of this section of the statute in 1889. A portion of this section of the statute was found in the Laws of 1866, but the first seven lines of such section, relied upon by the plaintiff, were added by an amendment, chapter 29, Laws 1889.
Our court had before it a case involving this section of the statute in Jacobson v. Lynn, 54 Neb. 794, and while
The defendant urges as a further error the admission of the testimony of the alleged conversation between the witness Crawford and an employee, Rasmussen, as admission with reference to the cause of the fire, it being the defendant’s claim that, if this evidence had been excluded by the court, plaintiff would have had no proof of the connection of the Henningson Engineering Company with the fire. It appears in the evidence that John Crawford, a ranchman, owning 1,114 acres, living about three miles from the plaintiff’s land, had been out fighting this prairie fire, and testified that the fire originated within three feet of the transmission line being built by the defendant company. That Fritz Rasmussen, a foreman of a pole gang for defendant company, came to his place during the course of the fire, and in a conversation between Crawford and Rasmussen the origin of the fire was touched upon. At the trial question No. 599 was asked Crawford, reading as follows: “Anything said as to the origin of the fire, as to how it started? A. He said one of the boys had started a fire.” No objection was made by the defendant’s counsel to this particular question, and no motion was made to strike out the answer. There is also evidence that a pair of climbers was found at the foot of a pole near where the fire started.
A witness, Clint Hardy, upon whose land the fire originated, testified that he had no range riders, and that nobody in his employ was about there that day. Q. 392: “How far was the transmission line at the point where this fire burned from any road? A. Well, better than half a mile.” He then said there was no fire between the public road and the transmission line.
Witness Hardy also testified that he was engaged by Foreman Rasmussen, and worked on this line the day
There was some evidence as to why defendant’s employees were near the place where the fire started Sunday, and Hardy testified that the day he was working there he heard “Boss” Martz say to the foreman of the wire gang, Rasmussen, “Send the crew back through here in the morning and slack this line eight inches,” but that the witness, Hardy, did not work with them on Sunday.
F. A. Martz was a construction foreman and had charge of the 15 or 18 men working on this transmission line. He testified that Rasmussen was top foreman of one crew. Mr. Martz testified that, when he came up to Thomas county about a month in advance and made an inspection with another engineer on the Halsey government forest reserve, Mr. Thompson cautioned them against smoking; that later, when the crews came to start work, instructions were issued by Mr. Henningson that the men must be kept from smoking while on duty. Mr. Martz testified that he was a moderate smoker, but that he never observed any men smoking on the job.
' Gragg and Utter were the two men doing the work Sunday morning. Gragg denied that either of them were smoking that Sunday morning, and testified on cross-examination that when he first saw the fire it was about a block from where they were, and at that time was about 75 feet wide and 200 feet long, and that he saw nobody else around, and no one else had gone through; that when they first saw it they got right in their Ford truck and drove to town and told Rasmussen, their boss, and a lot of men got in the truck and they all drove right back to fight the fire; that when they got back the fire was a mile long.
The jury found for the plaintiff on the disputed ques
The defendant argues strongly that in Nebraska a master is never liable for the acts of a servant committed outside the scope of his employment; if a servant steps aside from his master’s duties for even a moment to do an act entirely personal to himself, or for his own pleasure, the relation of master and servant is then suspended, and the master is not liable. Defendant cites, in support thereof, Clancy v. Barker, 71 Neb. 91, in which case a six-year-old son of a hotel guest wandered into the room of a hotel where a waiter was playing a harmonica, and in play he pointed a revolver at the boy, and it was accidentally discharged, destroying the sight of one of his eyes. It was held that the master is not liable for the torts of his servant unless connected with his duties and within the scope of his employment. However, we are unable to find any case in Nebraska involving similar facts to the case at bar.
Palmer v. Keene Forestry Ass’n, 80 N. H. 68, 13 A. L. R. 995, is a case where the defendant was employed to set out trees in a field, and one of his laborers carelessly dropped into the dry grass a lighted match, by reason of which the fire spread over the field, burned the trees, and destroyed the plaintiff’s buildings. The defendant’s position was that there was no evidence showing that the defendant had knowledge that this laborer was addicted to the use of cigarettes. The evidence tended to show that
In Jefferson v. Derbyshire Farmers, Ltd. (1921) 2 K. B. 281, 18 A. L. R. 989, being in the English court of appeal, a young man employed by the defendants in a garage in Ashbourne, in the county of Derby, while drawing a two-gallon tin of benzol from a 50-gallon drum, turned on the tap, and while it was running he lighted a cigarette and threw the match on the floor. A fire started in a flash, and no one could get near enough to turn off the tap, and the garage burned down. It was held that the employee, being engaged in an act which was within the scope of his employment, having failed to exercise caution, was guilty of negligence in the course of his employment, and the defendants were held liable for the resulting damage. It was said that a master is liable for the act of his servant in the course of his employment if the act is negligent. While in this case it seems to be the theory of the court that the act of the servant in continuing to draw the explosive in the presence of fire, rather than his act in throwing down the lighted match, was regarded as the proximate cause of the injury, it appears that 'this distinction is rather far-fetched, and that to all
In Keyser Canning Co. v. Klots Throwing Co., 94 W. Va. 346, 31 A. L. R. 283, a silk manufacturing company conducted its business in a wooden building, amid highly inflammable surroundings. A young man in its employ was known to be a smoker of cigarettes, and had been frequently warned against smoking upon its premises. He vas permitted to sleep at night in the premises, notwithstanding the company had knowledge that he was continuing his habit of smoking and was disobedient to the instructions. A fire started when this employee negligently threw a lighted cigarette stub into a waste-basket. The fire spread and destroyed a neighbor’s property. It was held that the silk manufacturing company was responsible for the loss of the property. This case goes much farther than we are asked to go in the case at bar, for the fire occurred during the nighttime, during the hours when the young man was not employed.
There is an English case, Williams v. Jones, 159 Eng. Reprint, 668, decided in the Exchequer Chamber February 7, 1865, which is the earliest case we have found involving a fire negligently started by smoking. The facts are that the plaintiff, having sold some boards to the defendant, lent him the use, free of cost, of one of three sheds, in which to have the boards made into a signboard. The defendant employed a carpenter named Davies to do the job. While Davies was at work on the signboard, a stranger came in, filled his pipe with tobacco, and at the request of Davies gave him sufficient tobacco to fill his pipe also. The stranger then struck a match, with which he lighted his own pipe, and Davies, having lighted a shaving at the flame of the match, after lighting his pipe with it let it fall negligently, and in endeavoring to kick away the shaving other shavings were ignited, and the three sheds
In Gilman v. Eastern R. Co., 13 Allen (Mass.) 433, 90 Am. Dec. 210, the railroad company employed as flagman a man who was an habitual drunkard, which fact was known to the officers of the company, or by due care might have been known, and while so intoxicated he misplaced a switch, whereby another employee was injured, and it was held that the railroad company must pay the damages returned by the jury.
In our opinion a statement of the law covering the case at bar was set out by instruction No. 12 given by the trial judge. We condense and abridge this into the following statement: It is clear that the smoking of cigarettes was in no way incident to or any part of the employment of the agents and employees of the defendant corporation; that before the defendant could be held liable for the wrongful act of any of said employees, the jury must find that smoking at the place in question was dangerous, and that fire might be ignited by throwing matches or cigarettes in dry grass; that the employees of the defendant were in the habit of smoking while engaged in their duties, which fact was known to the defendant; that, having knowledge thereof, the defendant corporation carelessly and negligently suffered and permitted this dangerous practice to continue, and took no adequate steps to abate the same, and that by reason thereof the fire in question occurred.
It is a general rule, supported by many cases, that the retention in employment of a servant known to be habitually negligent is negligence on the part of the master which will render him liable for injuries to third persons resulting from the acts of the incompetent servant, whether the master’s knowledge of such incompetency is actual
Perhaps the best discussion of the recent trend of opinion is found in Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corporation, 49 Fed. (2d) 146. The tank company was employed to dismantle a battery of oil tanks near Seminole, Oklahoma, and one of the workmen stopped in his work to light a cigarette, and threw the match on the oil-soaked ground. An insurance company paid $18,371.38 to apply on the loss, and sued the tank company. McDermott, Circuit Judge, discusses many cases, and said:
“Appellant next contends that, even if the workman was its servant, the lighting of a cigarette was not an act done in the course of his employment. * * * There is a conflict of authority upon the point, but on principle the rule does not seem to be elusive. Workmen are not employed to smoke any more than chauffeurs are employed to drive cars on sidewalks. Smoking is a pastime of the employee. * * * We have no quarrel with cases that decline to hold a master where a servant has stepped aside from his employment and has lighted a cigarette in surroundings where it could not reasonably be anticipated that damage would follow that act. * * * But the law is otherwise where the master sends out servants to do work, the nature of which is such that the master knows that damage is apt to occur if the servant smokes or strikes a match. In such a case the duty devolves upon the master to see to it that his servants exercise due care under the existing circumstances.”
We have examined all of the errors set out in the brief for reversal, but, having given such an extensive review of the authorities on this interesting question, which comes to this court for the first time, we must simply be content with saying that we find no prejudicial errors in the judgment entered on the verdict, and the same is hereby
Affirmed.