Anderson v. Moser, 34638

• Decision Date: 23 October 1959
• Docket Number: No. 34638,34638
• Citation: 98 N.W.2d 703,169 Neb. 134
• Parties: , 81 A.L.R.2d 956 Leslie C. ANDERSON, Appellant, v. Paul MOSER, Appellee.
• Court: Nebraska Supreme Court

Page 703

98 N.W.2d 703

169 Neb. 134, 81 A.L.R.2d 956

Leslie C. ANDERSON, Appellant, v. Paul MOSER, Appellee.

No. 34638.

Supreme Court of Nebraska.

Oct. 23, 1959.

Syllabus by the Court

1. The duty of the owner of the premises toward an invitee is to exercise ordinary care to maintain the premises within the scope of the invitation in a reasonably safe condition.

2. The law generally requires an employer to exercise ordinary care to provide reasonably safe tools and appliances for the use of his employee.

3. However, the foregoing rule has no application if the employee possesses ordinary intelligence and knowledge and the tools and appliances furnished are simple in character, in common use, easily understood, and in which defects can be readily observed by the employee.

4. In the instance of simple tools in common use an employer, as a matter of law, is relieved of the ordinary duty of furnishing safe tools and appliances to his employee, instructing the employee as to their use, and of inspecting the tools.

5. The knowledge of an employee of simple tools in common use is, as a matter of law, presumed to be equal to that of an employer.

6. It is within the discretion of the trial court to permit or refuse an amendment of a pleading during the trial of a case, and error cannot be predicated on the action of the court in reference thereto unless an abuse of discretion is established to the prejudice of the party who is adversely affected thereby.

7. The prerequisites of granting a summary judgment are that the movant establish that there is no genuine issue of fact in the case and that he is entitled to judgment as a matter of law.

Arthur O. Auserold, Bartlett, E. L. Vogeltanz, Ord, for appellant.

Frederick M. Deutsch, William I. Hagen, Norfolk, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an appeal from a judgment sustaining a motion for summary judgment made by appellee in a personal injury action grounded on negligence.

Appellant was 36 years of age and lived with his wife and four sons 9 miles west and 2 1/2 miles north of Elgin. He lived on a farm throughout his life except he was in the army 3 years and was engaged in office work in Scottsbluff during 1 year. He was a high school graduate and attended business college 2 years. He owns and has operated for several years a grain and livestock farm of 240 acres upon which he resides.

The wife of appellant is a sister of the wife of appellee. The latter is a farmer and lives 3 miles west and 1 mile north of Elgin. There are 6 or 7 miles between the farms of the parties. They generally did not exchange work on their farms but appellant was assisting appellee on the farm of the latter at the time of the accident, the subject of this action, on the afternoon of February 10, 1956, because he desired to move some hay and he asked appellant to assist him in the operation. There was an icy condition then existing and appellant had a large tractor equipped with wheel chains and was part owner of a hay truck or lowboy. Appellee had secured a tractor which was equipped with a winch or hoist. The winch, hereafter called a hoist, was homemade about 1950, was in use since that time, and was partly owned by appellant. He had used it at various times for 5 or 6 years. Appellee had also used it previously. The hoist was used to pull hay in stack onto the lowboy and thereafter the tractor of appellant pulled the loaded lowboy to its destination where the hay was removed from the lowboy by use of the hoist. The parties to this case and Wilford Arehart, another brother-in-law of appellant who also had a tractor available for use, moved three stacks of hay the day of but before the accident. One stack was for Wilford Arehart and the other two for appellee.

A universal joint was a component part of the hoist. It was a part of the means by which power was transmitted to the hoist from the tractor on which the hoist was mounted. The parts of the universal joint fitted into each other and they were fastened together or integrated by a hole through each part in which a metal pin was inserted. The pin, from some unknown cause, was partly displaced and remained in only one side of the part of the joint into which it had been placed. This was discovered by appellee when he attempted to operate the hoist to remove a stack of hay from the lowboy. Appellant and appellee laid the universal joint in a position so that the pin which was partly displaced protruded upward. Appellant was on the north of the tractor and appellee was on the south of it. They were in close proximity. They were intending to drive or force the pin back into its proper position as a part of the universal joint. Appellant held the pin with his left hand to guide it and he then tapped it several blows with a hammer. He was not successful in restoring it to its desired place. Appellee suggested that appellant guide the pin and that appellee would strike it with the hammer. He struck the pin numerous blows while appellant was guiding it and during this operation a particle of metal, probably steel, entered, pierced, and lodged in the eye of appellant. The injury was painful, serious, and expensive.

The record is silent as to the source of the metal which injured the eye of appellant. There is no information as to any investigation to learn its source. It may have been from the hammer, the pin, or some other part of the universal joint.

Appellee had hit the pin several substantial blows, described by appellant as 'pretty good licks,' as he had his hand on the pin to guide it like one would hold a nail or something like that. The description of the hammer is indefinite. It is said to have been what they call a 'plow hammer' or a 'blacksmiths' hammer of some kind.' Its weight was conjectured to be about three-fourths of a pound. The hammer was held in one of the hands of appellee while he was using it. Appellant was watching the pin and did not know how forcible the blows of the hammer were. Appellee was attempting for about a minute to drive the pin in before the injury happened to appellant and during this effort the only comment of appellant was: 'Don't hit it too hard because I can't guide it then.' This statement was provoked only because it was difficult to guide the pin and not because of any anticipated fear of danger or belief of existing hazard. Appellant would not assert that he did not have as much information about any hazard of hitting the pin with the hammer, under the circumstances, as appellee had on that subject. Appellant said he had no reason to know that appellee realized from what was being done that a piece of metal might be broken, propelled through space, and cause injury. The parties were doing the same thing at the time of the accident that was being done by appellant immediately before he surrendered the hammer to appellee except appellee was not guiding the pin when appellant was striking it with the same hammer in an effort to replace the pin to its normal position. The only thing appellant thought that appellee did wrong was possibly hitting the pin too hard.

Appellant argues that he was not an employee or servant of appellee but was an invitee on the premises of appellee at the time of the accident for the advantage of appellee; that the duty owed him as an invitee by the host to shield him from harm was greater than the duty of a master toward his employee while acting within the course of his employment; and that appellee defaulted in his duty to appellant by failing to warn him of the danger and hazard of injury attendant upon the attempt to repair the universal joint in the manner in which it was done, by requesting appellant to be present and to participate in that operation, and by inducing appellant to hold and guide the pin while force was being applied to it, which appellee knew or should have known was fraught with danger of injury to appellant.

It is not necessary to explore or decide whether the status of appellant was that of an employee or an invitee of appellee. The duty of appellee towards appellant was identical if he had either status at the time of the injury. That duty was to exercise reasonable care to prevent injury to appellant. An invitee may, for the purposes of this case, be defined as a person who goes upon the premises of another by the express or implied invitation of the owner or occupant thereof on the business of the owner or occupant or for their mutual advantage. The duty of the owner or occupant is to exercise reasonable care for the safety of the invitee while on the premises. See, Morse v. Gray, 166 Neb. 557, 89 N.W.2d 842; Taylor v. J. M. McDonald Co., 156 Neb. 437, 56 N.W.2d 610; 38 Am.Jur., Negligence, § 96, p. 754. Likewise, the measure of duty of an employer to an employee is generally that the former exercise reasonable care to protect the employee from injury while he is pursuing the course of his employment. Dougherty v. Pratt Institute, 244 N.Y. 111, 155 N.E. 67, 68, states: 'An owner of a building may owe as great a duty to the invited servant of another as he does to his own servant. He does not owe a greater one * * *.' In this view the case of appellant does not differ whether he was at the time of the injury an invitee or an employee of appellant.

It is also claimed by appellant that the failure of appellee, under the circumstances of this case, to provide an appropriate tool which would not have exposed appellant to great danger of injury and the procedure appellee adopted and required in an attempt to restore the pin in the universal joint to its normal and functional condition, to which appellant was subjected, were negligence and the proximate cause of the injury inflicted upon him.

Liability is not created against a person when, in the prosecution of a lawful act, injury to another is caused by an accident. One may not be...