Cudahy Packing Company v. Roy

• Decision Date: 07 April 1904
• Docket Number: 13,491
• Citation: 99 N.W. 231,71 Neb. 600
• Parties: CUDAHY PACKING COMPANY v. JAMES W. ROY
• Court: Nebraska Supreme Court

99 N.W. 231

71 Neb. 600

CUDAHY PACKING COMPANY v. JAMES W. ROY

No. 13,491

Supreme Court of Nebraska

April 7, 1904

ERROR to the district court for Douglas county: WILLARD W SLABAUGH, JUDGE. Reversed.

REVERSED.

Greene Breckenridge & Kinsler, for plaintiff in error.

A. C Pancoast and A. H. Murdock, contra.

LETTON, C. DUFFIE and KIRKPATRICK, CC., concur.

OPINION

LETTON, C.

This action was brought by James W. Roy against the Cudahy Packing Company to recover damages for personal injuries sustained by him while in the employ of said company. It appears that Roy was employed in that part of the Cudahy Packing Company's works, in South Omaha, known as the press room; that it was his duty to open and close a gate or valve by which certain soft tankage, consisting of offal, etc., contained in a tank situated upon the second floor of the tank-house and projecting through the floor into a room upon the first floor, in which the plaintiff worked, was emptied into a truck for the purpose of being conveyed to a press, in the process of the manufacture of fertilizer. This gate was opened and closed by means of a cast iron lever about 4 feet long and between 1 and 2 inches in diameter. While the plaintiff was attempting to close this gate, the lever broke, causing the plaintiff to fall backwards, by which the injuries complained of resulted. In his petition the plaintiff alleges that the company negligently provided an inefficient and defective appliance, that the lever was too small for the pressure that was necessary to be placed upon it; that it was of brittle cast iron, that it was too short, that it broke at its weakest point where there was a flaw in the iron, which defect was unknown to the plaintiff and, owing to the height of the lever, the plaintiff could not have discovered it, but the defendant might have discovered it by the exercise of due care and diligence in the selection and inspection of the same. He further alleges that the floor was greasy and slippery, and that the company failed to furnish him a reasonably safe and secure platform upon which to stand. That he had informed the superintendent of the need of this platform, and said superintendent instructed him to continue to use it for a short time, when he would have the necessary improvements made.

The defense is substantially the assumption of risks incident to the employment by the plaintiff, contributory negligence, that the defect in the lever was latent and was not discoverable by inspection, and lack of negligence in that respect by defendant.

The evidence shows that, a short time before the accident happened, the Cudahy Packing Company fitted up what was called the new tank-room at their packing house in South Omaha. That the witness, A. W. Ruff, who was the purchasing agent of the company, bought the gate valves and levers in use in that tank-room. That, before purchasing these appliances, he went to Chicago and examined the tank valves in use in several packing houses there, and also the patterns used for the plant of the Armour Packing Company in Kansas City, and that valves and levers of this pattern were in use in a number of packing houses in Kansas City and Chicago. The plaintiff had been working for the company as a common laborer for a number of years prior to the accident, and had been employed in the tank-room for about 3 weeks prior to that time. It appears that the tank-room or press-room, as it has been variously termed by the witnesses, was not in a completed condition. That the carpenters were still at work there, and that the gate which the plaintiff was operating had only been in use a short time when the accident happened.

It was the plaintiff's duty to open the valve by which a portion of the contents of the tank on the second floor was permitted to descend into a truck upon the first floor, and to close the valve when the truck was full. On the day the accident happened, the tank was empty; the plaintiff had been on the second floor cleaning it out; when he returned, a young man who had been trying to shut the valve had failed to do so on account of it being stuck, when the plaintiff took hold of the lever by which the valve was pulled and, while pulling it in the attempt to shut the valve, the lever suddenly snapped, allowing him to fall over backwards, whereby he was injured. The lever itself was introduced in evidence and showed clearly, at the point of breakage, a "blow-hole" or "sand-hole," as it has been variously termed by the witnesses, extending from a point at or near the surface of the lever for a distance of five-eighths of an inch toward the center of the same, the effect of which would necessarily be to weaken it at that point.

The defendant complains of the admission of evidence in regard to a promise to make more convenient the place where the plaintiff stood, while at his work, and the failure of the defendant to carry out such promise. There is no evidence in the record which shows that the defective condition of the place where the plaintiff stood was in any manner responsible for the injuries which he suffered. But this was an issue in the case made by the pleadings and, if the defendant desired to remove the consideration of the same from the jury, it should have requested the court to do so by tendering an appropriate instruction.

Complaint has been made by the defendant of the rulings of the trial court upon the admission or rejection of evidence, especially of the witnesses Brizendine and Bergquist; but an examination of the record shows that...