278 N.W. 502 | Neb. | 1938
This is an appeal from an order of the district court for Lancaster county, -Nebraska, directing the jury to return a verdict for the defendants in an action for personal injuries sustained by the plaintiff on account of the alleged negligence of the defendants.
An examination of the record reveals that this is. an action for personal injuries alleged to have been- sustained by the plaintiff, which he suffered when a wrought-iron upright pole, approximately 24 feet in height, on which he was working, toppled over, throwing him to the ground. The defendant, • the Lincoln Hatchery, the plaintiff’s employer (which is made one of the defendants by reason of having paid compensation' insurance), had employed the defendants James IT. Brandon and Arva V. 'Hartsón to do certain plumbing and .pipe-fitting work in connection with the construction of a gasoline filling station. -The defend
At lunch time, while the electrician and the defendants had gone to lunch, the plaintiff, making use of the electrician’s ladder, which had been left erected against the upright pole, prepared to attach the diamond-shaped baked-enamel sign to the bracket. -He ascended the pole and at
Inspection of the pole after it had fallen to the ground revealed that the long upright pole had separated' from the coupling, which was about a foot above the ground, causing the long piece to fall its entire length of 24 feet. Further examination disclosed that neither the pole nor the coupling had been broken; that the coupling-had not split or widened; that neither the threads on the long pole nor on the coupling were stripped, and from the brightness of the exposed threads, it was evident that only two or three threads of the long pole and the coupling had been engaged or screwed together. The evidence of expert witnesses on behalf of the plaintiff reveals that the standard practice in joining such pipes, as in this case, required that the pipe threads be screwed or entered into the coupling so that not less than ten full threads were engaged, and that engaging only two or three threads of the pipe into the coupling would be decidedly below all recognized and standard practice, and would not be considered satisfactory or suitable work. Testimony further reveals that had the pole been properly assembled it would have withstood the weight and force directed against it at the time of the plaintiff’s fall, and in fact it would have withstood from six to eight times the actual load applied.
The plumbing firm of Brandon and Hartson, in undertaking to assemble this upright pipe by joining the two pieces with a coupling, owed a duty to this plaintiff, and any other person rightfully on the premises, to perform the work in a proper and workmanlike manner, and with
The defendants Brandon and Hartson, by attempting to-assemble this upright pole, assumed a duty of assembling it- in a good and workmanlike manner, and if a reasonable and prudent person under like circumstances, after having seen the use to -vyhich the pole was to be put, could reasonably have anticipated that some person would climb the pole in order to attach the sign thereto by means of a ladder, and put his weight upon the pole, then the defendants are liable for any injury that may have been sustained by any person rightfully upon the premises, as a direct and proximate result of their negligence, and in this case their negligence consisted of the improper and unworkmanlike manner of assembling the two pieces of pipe. Thus, it is to be seen that the rule is: “Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehend that, as the natural and probable consequences of his act, an
“A motion to direct a verdict at the close of plaintiff’s •evidence is, in effect, a demurrer to the evidence, and where the trial court sustains such motion, and dismisses- the action, the appellate court, in reviewing such decision, will assume the existence of every material fact which the evidence on behalf of the plaintiff tends to establish and, in addition, give the plaintiff the 'benefit of the logical inferences therefrom.” Zielinski v. Dolan, 127 Neb. 153, 254 N. W. 695. See Mahon v. Spence, supra; Howard v. Sacks, Inc., supra; Colbert v. Holland Furnace Co., 241 Ill. App. 583, Aff. 333 Ill. 78, 164 N. E. 162; Kowalsky v. Conreco Co., Inc., supra; Tralle v. Hartman Furniture & Carpet Co., 116 Neb. 418, 217 N. W. 952.
The plaintiff’s- evidence in this case clearly establishes that the plumbing firm of Brandon and Hartson negligently
We are now confronted with'the question of whether or not the plaintiff in this case was guilty of contributory negligence sufficient to enable us to say that, as a matter •of law, the court was justified in directing a verdict against him. Therefore, we must consider what the plaintiff did in this case. He climbed up the pole on the ladder that was .•already there, that had been used by the electrician, and .attempted to fasten the sign to the pole, at which the pole ■came apart, causing him to fall and to receive the injuries ■complained of. Can it be said that, as a matter of law, he •was negligent if he did not place the ladder against the
We are not unmindful that the defendants contend, and it is true, that there v/as no contractual relationship between the plaintiff and the defendants, and that because of the absence of this contractual relationship they owed the plaintiff no duty, and could not, therefore, be liable for any injury sustained by him. However, this case is one sounding in tort and is not based on any contractual
The defendants also contend that the pole was not being used for the purpose for which it was intended. The purpose of the pole in this case was to support a sign, and how the defendants expected the plaintiff or the defendant, the Lincoln Hatchery, to suspend a sign therefrom and attach electrical fixtures thereto without putting some weight upon the pole is not answered to our satisfaction.
The defendants also put considerable stress upon the exact manner in which the plaintiff attempted to hang the sign, but the evidence clearly establishes that if the pole had been assembled in accordance with recognized standards it would have borne the plaintiff’s weight many times over, so we do not believe any weight can be given to the defendants’ theory that, had the plaintiff put his weight upon the pole in a different manner, the accident would not have occurred. The plaintiff had the duty of using ordinary care for his own safety, but he undoubtedly had a right to assume that the pole was properly joined.
For the reasons heretofore given, we feel that the district court was in error in directing a verdict for the defendants in this case, and the judgment of this court is that the judgment be reversed and the cause remanded.
Reversed.