Brown v. Swift & Company

• Decision Date: 29 May 1912
• Docket Number: 16,669
• Citation: 136 N.W. 726,91 Neb. 532
• Parties: STEPHEN I. BROWN, APPELLEE, v. SWIFT & COMPANY, APPELLANT
• Court: Nebraska Supreme Court

136 N.W. 726

91 Neb. 532

STEPHEN I. BROWN, APPELLEE, v. SWIFT & COMPANY, APPELLANT

No. 16,669

Supreme Court of Nebraska

May 29, 1912

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Reversed with directions.

REVERSED.

Greene & Breckenridge, for appellant.

McCoy & Olmsted, contra.

ROSE J. REESE, C. J., not sitting. LETTON, J., dissenting.

OPINION

ROSE, J.

Plaintiff was injured when he was attempting to haul a truckload of meat from a freight car to the sweet-pickle cellar of defendant's packing-house at South Omaha. In an action for personal injuries thus sustained, he recovered a judgment for $ 2,725, and defendant has appealed. Plaintiff died after the case was brought here, and it has been revived in the name of the administrator of his estate.

Plaintiff entered defendant's employ September 15, 1904, and the injury occurred December 3, 1904. He worked in the smoked-meat department until about December 1st, and thereafter handled a truck in the sweet-pickle department. He was 48 years old, 5 feet 10 inches high, weighed 170 pounds, was in perfect health, and was a man of at least ordinary intelligence. In front of, and west from, the packing-house, he was working on the second platform, a structure the length of three freight cars. It is adjacent to the second railroad-switch and extends north and south. A runway from the sweet-pickle cellar to this switch opens to the north and also to the south at the west side of the platform near the center, being equally convenient from both ends. On the day of the accident, until about 4 o'clock in the afternoon, plaintiff had been hauling meat on a truck from the sweet-pickle cellar up the runway into a car at the south end of the platform. A few minutes before the hour named he had been directed by the foreman in charge to take a truck-load of meat out of a car at the north end of the platform to the sweet-pickle cellar. This order required plaintiff to leave the south end of the platform, where it is 9 feet wide and 2 inches lower than the floor of a freight car, and go to a freight car on the north end of the switch, where the platform is less than 7 feet wide, and, owing to a difference in elevations of the railroad track, 10 or 12 inches lower than the floor of a freight car. The car to which he was directed to go was 8 inches from the platform, and in unloading it the trucks were run in and out on a wooden apron 3 1/2 feet long, one end resting on the floor of the car and the other on the platform. Plaintiff was using an ordinary two-wheeled truck with a box resting on the axle and on shafts supported in front by legs available for brakes, the center of mass being in front of the axle when the box is level. The handles were on the front ends of the shafts. Plaintiff took the truck thus described into the car at the north end of the platform, and after it had been loaded he started to the sweet-pickle cellar. He stood between the shafts with his back to the load, and pulled the wheels onto the apron, intending to turn to the right toward the runway as soon as they reached the floor of the platform. Instead of lowering the handles and sliding the shaft-legs on the platform to retard the motion when the truck began to run down the incline on the apron, he pulled back on the handles, with the effect of raising them without stopping the truck. He failed to make the turn quick enough, and the truck ran across the platform against upright timbers which supported a plank foot-walk along an elevated switch-track 4 feet higher than the platform on which he was working. His left hand was crushed by the impact and pinned to a timber. East of the foot-walk and the elevated switch-track there was also an elevated platform accessible from the second floor of the packing-house, and all were above the runway through which plaintiff had been passing with his truck the day he was injured. The walk, the switches and the platforms were all parts of permanent structures used by defendant in connection with its packing-house.

The material inquiry is: Was it the duty of defendant to warn plaintiff of the dangers incident to running the truck down the apron to the platform and to instruct him how to perform that part of his work? Plaintiff asserts that he was a green hand, that he had never before hauled a truck out of a car at the north end of the platform, that he did not know the dangers incident thereto, and that, in his new situation and surroundings, he did not know how to handle the truck so as to prevent injury to himself. To defeat a recovery defendant invokes the following rules: In a suit by a servant against the master for personal injuries, the employer is liable for the consequences, not of danger, but of negligence. O'Neill v. Chicago, R. I. & P. R. Co., 66 Neb 638, 92 N.W. 731; Central Granaries Co. v. Ault, 75 Neb. 249, 106 N.W. 418; Weed v. Chicago, St. P., M. & O. R. Co., 99 N.W. 827, 5 Neb. Unoff. 623. A servant of mature years and of ordinary intelligence should, in performing the duties of his employment, take notice of the ordinary operation of familiar laws of gravitation and govern himself accordingly. Walsh v. St. Paul & D. R. Co., 27 Minn. 367, 8 N.W. 145; Parsons v. Hammond Packing Co., 96 Mo.App. 372, 70 S.W. 519. The general rules of law applicable to the furnishing of tools and appliances by a master are not always applied, where a simple...