Cent. Granaries Co. v. Ault

• Decision Date: 06 December 1905
• Citation: 106 N.W. 418,75 Neb. 249
• Parties: CENTRAL GRANARIES CO. v. AULT.
• Court: Nebraska Supreme Court

75 Neb. 249

106 N.W. 418

CENTRAL GRANARIES CO.

v.AULT.

Supreme Court of Nebraska.

Dec. 6, 1905.

Syllabus by the Court.

Whether it is incumbent upon a master to warn his servant of the hazards attending the business in which he is engaged, must be determined from the facts and circumstances shown to exist. A servant who from the length or character of previous service or experience may be presumed to know the ordinary hazards attending the proper conduct of a certain business is not entitled, as an absolute right, to the same or similar notice of dangers incident to the employment as if he was ignorant or inexperienced in the particular work, and this rule applies to infants as well as adults.

The master is required to provide only such facilities and conveniences for the use and operation of machinery by his employés as are in common and general use.

Whether the master is guilty of negligence in not providing a safe place for his servant to perform the labor required of him is a question of fact for the jury, but what is competent evidence to establish that fact is a question of law for the court.

Commissioners' Opinion. Department No. 2. Error to District Court, Gage County; Kelligar, Judge.

Action by Isaac E. Ault, as administrator of Nels C. Nelson, against the Central Granaries Company. Judgment for plaintiff. Defendant brings error. Reversed.I. R. Andrews and Edgar M. Morsman, Jr., for plaintiff in error.

Hazlett & Jack, for defendant in error.

JACKSON, C.

The plaintiff in the trial court, as administrator of the estate of Nels C. Nelson, deceased, recovered judgment against the defendant in an action wherein it was claimed that the death of the deceased was caused by the negligent acts of the defendant. The defendant prosecutes error and one of the grounds of complaint is that the verdict and judgment are not sustained by the evidence.

At the date of Nelson's death the defendant was operating an elevator at Filley. Neb. The power was provided by means of a gasoline engine placed in a room adjacent to the main building. The engine room was rectangular in shape, 12 feet 10 inches in length from the north to the south, and 7 feet 3 inches in width from the east to the west. The engine is situated in the northwest corner of the room so that the fly wheels are within 4 1/4 inches from the north wall. There are two fly wheels situated 18 inches apart, one on either side of the engine. The power is transmitted to the elevator by a belt. The belt is attached to the engine by means of a pulley on the main shaft of the engine extending outward from the east fly wheel. From the outer edge of the pulley to the east wall the distance is 35 inches. Attached to the east wall, 44 inches from the floor, is a shelf 12 inches wide and some 7 feet long, leaving a space of 23 inches between the shelf and the outer edge of the pulley. Below this was another shelf 16 inches wide and 23 inches in length, described as being about the height of a man's knee from the floor, leaving a space of 19 inches between the outer edge of the pulley and the lower shelf. From the floor line to the center of the shaft it is 23 3/4 inches. The driving pulley is 12 inches in diameter. The deceased, at the time of his death, was 16 years and about 11 months of age. He was a boy of ordinary intelligence and inclined, perhaps, to be careless; a hard-working, industrious boy of good habits and well developed for his age. He was employed by the defendant, and had exclusive charge of the engine room and engine, and owing to the fact that the engine, after being started, required little or no attention, he attended to the loading of cars. This duty required the shoveling of grain away from the spout by means of which the grain was conducted from the elevator into the car, and the changing of the spout from one end of the car to the other. This service it was necessary to perform in order to prevent the spout from becoming clogged and interfering with the operation of the machinery in the elevator. He had been employed in and about the elevator during the busy seasons for about 3 years, during which time the elevator had changed hands two or three times, and was so employed at the time the defendant acquired and took possession of the elevator, and had been repeatedly warned by former employers to be cautious, to be careful, and not get mixed up with the machinery.

On the day of his death he was first at the elevator, he was seen to go there at about 7 o'clock in the morning, and soon afterward the machinery was heard in motion, later the defendant's manager, while on his way to the elevator, heard what he described as a screeching noise. He ran to the elevator, went into the driveway between the engine room and the main building and saw that the elevator was stopped. He then opened the door of the engine room and found the engine in operation, and the deceased lying dead on the floor in the space between the east fly wheel and the east wall, with his head, the entire top of which had been crushed off, very near to the fly wheel. No one saw the accident and no one has undertaken to explain it except by detailing the circumstances and conditions under which the body was found. It is manifest from the evidence that he went to the elevator, started the engine, and commenced loading a car of grain. One end of the car had been filled, and the spout changed to the other end, when he returned to the engine room, for some purpose not known. The grain had filled into the car around the spout, and because of the fact that no one was there to shovel it away the spout had filled up until the elevating machinery was clogged, and the pressure had loosened the set screw fastening the pulley to the elevator shaft, so that the pulley revolved on the shaft without turning the machinery, thus causing the screeching noise heard by the manager. The engine was in perfect repair, and there is no pretense of...