98 Neb. 783 | Neb. | 1915
Plaintiff fell on the floor of a railway freight car, while unloading wall-paper, and this is an action to recover resulting damages in the sum of $15,000 for personal injuries. At the time of the accident the car stood on a siding in the Omaha freight yards of the Chicago Great Western Railroad Company. It is charged that the carrier negligently delivered the consignment of wall-paper in a box car with a loose, sliding door, through which snow filtered, thus making the floor slippery and dangerous. Plaintiff was in the employ of the consignee, Yetter & Company, a corporation, and he alleges that his employer negligently ordered him, without, warning, to hurry into the car, when he had no knowledge of his peril. The carrier and the employer are defendants! Both denied negligence, and al
The decisive point on appeal is the sufficiency of the evidence to sustain the verdict. The judgment-rests on the testimony of plaintiff. It may be summarized as follows : He was employed March 12,1912, by Yetter & Company, and worked under the direction of Merwin E. Vernon, foreman. The car of wall-paper was delivered to that corporation by the Chicago Great Western Railroad Company. It stood on a side-track running east and west in the carrier’s Omaha freight yards ready to be unloaded at a door on the south side. Before noon, March 13, 1912, the foreman, accompanied by plaintiff, backed a dray up to the car door; the floor of the dray being, practically on the same level as that of the floor of the car. The door did not fit closely, and between it and the rolls of wall-paper,, which had been loaded with the ends to the door, snow had collected. Plaintiff swept out the snow. The wallpaper had been packed in bales, each weighing 25 pounds or more, plaintiff and the foreman carrying them from the car to the dray. Together they delivered a dray load at the employer’s warehouse in Omaha. They spent the afternoon at work in the same manner, and closed the car for the night. They took a dray load from the car to the warehouse before noon the next day, and closed the car door. When they returned to work in the afternoon there was no snow in the car, the floor of which was covered with a thick, heavy, glazed paper with a sleek surface. Up to-that time plaintiff could walk in the car as well as on the floor of the court-room. After the wall-paper had all been moved from the car except one dray load, and while plaintiff and the foreman were absent from the closed car on a trip to the warehouse, snow fell, with the wind in the
The substance of the argument justifying the inference of actionable negligence on the part of the employer appears in the brief of counsel as follows: “The circumstances under which plaintiff was injured demonstrate conclusively that his falling upon the snow in the dark car was not his fault. It was the fault of the boss who ordered him to hasten into the car without in anywise calling his attention to the dangerous condition which had been created in the car during plaintiff’s absence. The danger of this condition was obvious to Vernon when he was getting the door of the car open and before he gave his reckless order to the plaintiff to hurry into it. There is no shadow of doubt but that plaintiff owes his injuries entirely to this reckless and careless order given him by Vernon.”
Is the position thus taken tenable? Plaintiff was an able-bodied man of mature years and of at least ordinary intelligence. There is nothing in the record to indicate that he was handicapped by any mental or physical infirrn
In discussing the effect of directing a servant to hurry, the court of appeals of Missouri said: “Now, as a general proposition, the master, the superior servant, or vice-principal, may give such usual and customary orders in and about the business he is prosecuting and within the scope of. the employment as are essential to in dulce a prompt and attentive discharge of the duties imposed by the contract of service without breaching the obligation to exercise ordinary care for the safety of the servant. A mere order to hurry or to be quick in the performance of labor in and of itself is not negligence. Such, generally speaking, is a usual and proper exercise of authority. Coyne v. Union Pacific R. Co., 133 U. S. 370; Ruchinsky v. French, 168 Mass. 68; Herold v. Pfister, 92 Wis. 417. Indeed, on this question the authorities go to the effect that a mere order to hurry up with the task is not negligence unless it tends to subject the party to an extraordinary hazard; that is, a hazard not ordinarily incident to the employment, or operates to excite, distract or disconcert the employee to such an extent as renders him unable to exercise due care for his own safety. Sambos v. Cleveland, C., C. & St. L. R. Co., 134 Mo. App. 460, 467; Saller v. Friedman Bros. Shoe Co., 130 Mo. App. 712.” English v. Roberts, Johnson & Rand Shoe Co., 145 Mo. App. 439.
In the present case there is nothing in the evidence to indicate that the foreman had any reason to suspect plaintiff would not see the snow on the glazed surface of the floor or fail to use ordinary care to avoid injury. Since the conditions resulting in the accident were open and obvious, since they were brought about by the operation of familiar natural laws, of which plaintiff was required to take notice, since there was no duty on the part of the employer to give warning of the danger, since the plaintiff was not misled or neglected by his employer, since the undisputed evidence shows that the exercise of ordinary care on the part of plaintiff, under the circumstances, would have re-
A text-writer said: “There are, it may be supposed, very few trials in which the servant does not swear that the risk was unknown to him. Due weight is attached to this consideration; for, taking the cases as they stand, it seems permissible to say that such a denial is treated as being a merely corroborative element which furnishes an additional justification for a conclusion in itself not unwarrantable even if that element were abstracted. * * * Both on principle and authority it is indisputable that, if the servant’s testimony is contrary to all probability when the rest of the evidence is considered, it may be disregarded by a court of review.” 4 Labatt, Master & Servant (2d ed.) sec. 1309.
While plaintiff’s injuries and resulting condition appeal to human sympathies, the judgment in his favor is without support in the evidence. It is therefore reversed, with a direction to the trial court to dismiss the action.
Reversed.