86 Neb. 279 | Neb. | 1910
An oral argument has been made by counsel for both parties on defendant’s application for a rehearing. Being more fully advised, we conclude that our judgment should be for the defendant Commercial Building Company. The statement of facts in our first opinion is correct, but will be repeated.
The building in question was constructed by the Rohrbough brothers, Marion G. and George A. The evidence tends to prove that the first and second stories of the structure were constructed for college and office purposes, the third story was designed for lodge and public assembly rooms, and the fourth story for a gymnasium. After the building was completed the Rohrboughs rented
Plaintiff alleges the building was negligently constructed in many particulars with reference to the plan adopted, the material used, the construction and support of the trusses, and the manner in which the east wall of said room was lathed and plastered. Plaintiff further charges that the fourth story of said building was not constructed, and should not have been used, for a gymnasium; that, when the patrons of the gym
The court by its sixth instruction informed the jury that if the defendants Bohrbough negligently constructed the building in question, as charged by plaintiff, so that it was dangerous to life or limb of those who might reasonably be expected to occupy it, and such negligence was the proximate cause of Mrs. Young’s death, the jury should find against the Eohrboughs, notwithstanding they had transferred the property before the woman was injured; that the Eohrboughs in this particular should be charged with such knowledge as they had or should have acquired “by the exercise of such care and prudence in the construction of the building and the uses to which it was put as an ordinary, prudent person would have gained under like circumstances and conditions.” In the eighth instruction the jury were further told that if the Eohrboughs as directors of the building company knew, or by the exercise of ordinary prudence ought to have known, the building was in a dangerous and defective condition for the purposes to which it was devoted, and Mrs. Young was injured as a proximate cause of the negligence charged in the petition, they were liable. The court also stated in this instruction: “The said defendants would be charged with such knowledge as they actually had, or should have gained by the exercise of such care and prudence in the maintenance of the building, and the uses to which it was put, as an ordinary, prudent person would have gained under like circumstances and conditions.” Upon these instructions the jury found for the Eohrboughs, judgment was rendered in their favor, and no appeal has been prosecuted
The evidence tends to prove that the use of the gymnasium caused the ceiling of the lodge room and the building itself to shake and vibrate, and that complaint was made to Marion G-. Rohrbough that the noise created by the use of the gymnasium was obnoxious to the members of the lodge and interfered with the transaction of their business, but there is not a scintilla of evidence that anything was said to the directors of the corporation, or any agent thereof, about the vibrations or the effect of the gymnastic exercises upon the building, or that any agent or representative of the corporation had knowledge of those facts. The directors deny emphatically they had any notice or information that the plastering upon the east wall of the lodge room was in any manner defective, The verdict upon the instructions submitted
We adhere to the statement made in our former opinion that the Rohrboughs, in constructing the building, did not act as agents of the defendant corporation, and that it will not be heard to complain because the court may have held the defendants Rohrbough to á stricter account than the law will justify. We think, hoAvever, we did not give sufficient weight to the verdict in favor of the Rohrboughs, in the light of the issues presented by the instructions. By the seventh instruction the jury were informed the corporation would be bound by such knoAvledge as its directors or managers, or either of them, possessed, and by the eighth instruction they Avere told the Rohrboughs should be charged, in case of negligence, with sucli knoAvledge as they had, or as an ordinarily prudent person would have acquired under the circumstances of this .case. Notwithstanding the jury have found all of those facts in favor of the Rohrboughs, by that same verdict they say, for the purposes of the corporation, that the. Rohrboughs did construct an unsafe building, or they as directors did devote it to an improper use, or by the exercise of reasonable prudence they could have anticipated and prevented the injury to Mrs. Young. Upon mature reflection we think the case of Gerner v. Yates, 61 Neb. 100, is in point. It is true that in the
It is argued that the corporation may be held by reason of the knowledge possessed by the director Shimer, because he was a member of the firm of contractors that constructed the building, and may have acquired, and probably did gain, knowledge of the alleged defective condition of the building, and that knowledge should be imputed to the corporation defendant. The jury, however, say the building was not improperly constructed, so Shimer could not have knowledge of a condition that did not exist. Concerning the alleged improper use to which the building was devoted, the court informed the jury that, if the Bohrboughs in reason could have ascertained any of the facts concerning which plaintiff complains, these directors should be held, and the jury by their verdict say no reasonably prudent man could have ascertained those facts. There is not a scintilla of evidence that Shimer had anything to do with renting the building, or any part thereof; that he was ever informed or knew that the east wall of the room in question was defective, or that the use of the fourth floor for a gymnasium caused any part of the building to vibrate. We do not think, under the instructions" of the court, the possibility that Shimer may have known some facts essential to charge the corporation can be accepted to sustain the verdict.
It is also suggested that the corporation is liable for its directors’ negligent failure to act, whereas they can only
For the reasons above stated, our former judgment of affirmance is set aside, the judgment of the district court reversed as to the defendant Commercial Building Company, and the cause remanded for further proceedings.
Judgment accordingly.