Burras v. Cudahy Packing Co.

• Decision Date: 05 February 1916
• Docket Number: 4349.
• Parties: BURRAS v. CUDAHY PACKING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

230 F. 596

BURRAS v. CUDAHY PACKING CO.

No. 4349.

United States Court of Appeals, Eighth Circuit.

February 5, 1916

Norris Brown, of Omaha, Neb. (Irving F. Baxter, of Omaha, Neb., on the brief), for plaintiff in error.

J. C Kinsler, of Omaha, Neb., for defendant in error.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

Burras sued the company to recover damages for personal injuries received by him while in its employ, and which he alleged were caused by the negligence of the company. The trial court at the close of all the evidence directed a verdict against him. It is assigned as error that the court erred in so ruling.

The undisputed evidence showed that Burras at the time of the accident was an employe of the company, and had been since 1900. On the 19th day of August, 1913, he had charge of the overhauling gang in the sweet pickle department of the company in its plant at South Omaha, Neb. He was foreman of about 11 men, who worked on the different floors of that department which was in a building four stories high. On the morning of the day mentioned he was engaged in the line of his duty in taking a load of meat from the first floor of the building to the fourth floor thereof by means of an elevator which he was operating. One Cikota was with him in the elevator. When the elevator was about 14 inches below the fourth floor the rope which was used to raise and lower the same broke, and the elevator fell a distance of 48 feet. The load of meat which was upon the elevator and which was being elevated weighed 700 or 800 pounds. Burras received his injuries by the fall of the elevator. Counsel for Burras say in their brief:

'Let it be understood plaintiff does not contend that any presumption as to the negligent condition of the rope cable can arise from the lone fact that the elevator fell. This is a suit by a servant against the master based on the negligence of the master, and no one contends for the application in any degree of the rule res ipsa loquitur.'

This statement of counsel simply admits a well-known rule of law. We therefore must look outside of the mere fall of the elevator to find any case for submission to the jury. The negligence charged in the petition against the defendant company was (a) that the defendant allowed the elevator to become in bad repair, and to become unsafe and dangerous for use; (b) that defendant company failed to equip the elevator with overhead cables of sufficient strength and size to sustain said elevator; (c) that defendant failed to equip said elevator with a speed governor safety device or with any other protection or guard as required by the revised statutes of Nebraska.

It is claimed by counsel for Burras that the testimony of one Joe Halski made it necessary that the case be submitted to the jury. Said testimony is as follows:

'My name is Joe Halski. I reside in South Omaha and have been working in the sweet pickle department of the defendant company for several years. I know Joe Burras. I heard the elevator crash when it fell. After the accident, I examined the rope cable that holds the elevator. I used a ladder to get on top of the elevator where the runner is on the elevator. I examined the rope. I saw it rubbed through, but I did not see the end of the broken rope. I saw the rope rubbed on the pulley and a lot of rubbish from the rope. It was a thick heavy rope. I saw it was broken because there was a lot of rubbish, but whether it was from the end of the rope or the middle of the rope I did not notice that. I examined it after the accident on the same day, but don't remember whether in the forenoon or

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