92 Neb. 719 | Neb. | 1913
Plaintiff, a.s administrator of the estate of Stewart E. Tully, deceased, brought suit in the district court against the Grand Island Telephone Company, the- Grand Island Electric Company, and the Fairmont Creamery Company, corporations, for damages resulting from the death of Stewart E. Tully; said death being caused by the alleged negligence of defendants. Issues were joined, a trial had, when the jury returned a verdict in favor of plaintiff and against all defendants for $2,000. No motion for a new trial was filed by either the telephone or electric company. A motion was filed by the creamery company, but was stricken from the files because not filed within the time prescribed by law, when judgment was rendered against all defendants for the amount of the verdict. The creamery company appeals.
Among the errors assigned was that of the action of the district court in striking the motion for a new trial from the files. That ruling was reviewed by this court, and the decision is reported in 87 Neb. 822; the order of the district court being affirmed.
There remains but one question for decision, which is: Do the allegations contained in the petition state facts sufficient to constitute a cause of action against the appellant, the creamery company? The petition is of considerable length, and its substance only will be here stated. It is alleged that the electric company had its wires of very high voltage strung upon the poles in the streets of the city of Grand Island; that the telephone company also had its wires similarly placed in close and dangerous proximity to the wires of the electric company,
Tt is provided in section 121 of the code that, “in the construction of any pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.” The rule of the statute is given its full effect where the contention is made for the first time after the judgment, or in the supreme court. Merrill v. Equitable Farm & Stock Improvement Co., 49 Neb. 198; Chambers v. Barker, 2 Neb. (Unof.) 523; Sorensen v. Sorensen, 68 Neb. 483; Nebraska Nat. Bank v. Hallowell, 63 Neb. 309; Latenser v. Misner, 56 Neb. 340; First Nat, Bank v. Tompkins, 3 Neb. (Unof.) 334. Applying this well-known rule to this case, it appears from the petition that the instrument of death was near to and practically adjoining defendant’s place of business, and where it was known to defendant that its employees would have to pass and re-pass in going to and from the entrance to the building, and that defendant knew of the danger and the exposure of its employees to it, but negligently failed and omitted either to remove the wire or warn its employees of their danger, and, by reason of its failure so to remove the danger or warn decedent of its existence, the decedent was killed.
It is true, as a general proposition, that a defendant cannot usually be held' liable for accidents caused by the acts or omissions of others over which he has no control, but a different rule must be applied where the instrument of danger is within such close proximity to his place of
Under the Avell-known rule for the construction of pleadings in such cases, it must be held that the averments of the petition are sufficient to constitute a cause of action.
The judgment of the district court is therefore
Affirmed.