Dehning v. Bridge

• Decision Date: 07 December 1895
• Citation: 46 Neb. 556,65 N.W. 186
• Court: Nebraska Supreme Court
• Parties: DEHNING v. DETROIT BRIDGE & IRON WORKS.

46 Neb. 556

65 N.W. 186

DEHNING

v.DETROIT BRIDGE & IRON WORKS.

Supreme Court of Nebraska.

Dec. 7, 1895.

Syllabus by the Court.

1. A person who contracts to perform labor or services for another is presumed to have so contracted in view of the risks ordinarily incident to or connected with the employment. He assumes all such risks.

2. An employé assumes the risks arising from defective appliances used or to be used by him, or from the manner in which a business in which he is to take part is conducted, when such risks are known to him, or apparent and obvious to persons of his experience and understanding, if he voluntarily enters into the employment, or continues in it without complaint or objection as to the hazards.

3. The above rule has been modified in this state as follows: “Where the servant, in obedience to the requirements of his master, incurs the risk of machinery or appliances, which, although dangerous, are not of such a character that they may not be safely used by the exercise of reasonable skill and caution, he does not, as a matter of law, assume the risk of injury from accident resulting from the master's negligence.” Railroad Co. v. Finlayson, 20 N. W. 860, 16 Neb. 578;Lee v. Smart, 63 N. W. 940, 45 Neb. 318.

4. When the evidence is insufficient to sustain a verdict for plaintiff, it is proper practice for the trial court to direct a verdict for defendant.

Error to district court, Douglas county; Irvine, Judge.

Action by C. C. Dehning, administrator of Adam C. Dehning, against the Detroit Bridge & Iron Works. Judgment for defendant, and plaintiff brings error. Affirmed.Bradley & De Lamatre, for plaintiff in error.

Breckenridge & Breckenridge and L. F. Crofoot, for defendant in error.

HARRISON, J.

This action was instituted by the plaintiff as administrator of the estate of Adam C. Dehning, deceased, to recover damages alleged to have been sustained through the death of the son of plaintiff, who lost his life while in the employ of the defendant; and, it is further claimed, through the negligence of defendant. It was stated, in substance, in the petition that the defendant was on or about September 15, 1890, engaged in the construction of a viaduct extending several blocks on and above Tenth street in the city of Omaha; that Adam C. Dehning was, on or about the date mentioned, employed by defendant to heat rivets used in fastening together certain parts of the viaduct; that such heating was done in a small forge, which was placed upon planks laid on the framework of the upper portion of the viaduct, at a distance of about 30 feet from the ground or the surface of the street beneath; that coal was used as fuel for the forge, and was kept on the ground beneath the structure; that a part of the labor to be performed by Adam C. Dehning was to procure this coal from where it was placed on the street, for use in the forge, whenever needed. The allegations in respect to the negligence of defendant were of the placing of the forge upon the viaduct in such a manner that it subjected the employé to risks of bodily injury, or endangered life, and failure to provide safe and proper appliances for use in operating the forge, or suitable safeguards, or safe and secure approaches, walks, or planks for use in passing over the framework of the viaduct in going to or from the platform upon which the forge worked by the young man Dehning was situated. It was further pleaded that by reason of the negligence of defendant, and without any fault or negligence on the part of Adam C. Dehning, on the 15th day of October, 1890, he fell from the viaduct to the ground below, and was killed. There was an answer, in which, so far as we need to notice it, there was a denial of any negligence attributable to defendant, and a statement that: “Whatever dangers or risks of injury there were in and about the premises upon which the said Adam C. Dehning, deceased, was employed, the same were open, apparent, plainly visible, and necessarily forced upon the attention of the said deceased. This defendant alleges the fact to be that the said injuries resulting in the death of deceased were received by him by reason of his exposure to the risks incidental to the business, and also by reason of and owing to his own carelessness and negligence in not paying proper care and attention to his surroundings at the time he received the injuries which occasioned his death.”

When the case was placed upon trial before the court and a jury, the counsel for defendant interposed an objection to the reception of any testimony on behalf of plaintiff, for the reason that the petition did not state facts sufficient to constitute a cause of action. This objection was sustained, and the plaintiff was allowed to amend his petition, which he did, stating, in addition to what was pleaded in the original petition: “And plaintiff further alleges that at the time when the deceased entered into the employment of defendant, as above alleged, he was required to work at a far less dangerous height, and in a much less dangerous situation; but that, after being so in the employ of defendant for some weeks prior to the receipt of the injury complained of, the place or position in which the deceased was required to perform his labor became much higher from the ground, and far more dangerous, and by reason of the premises it became and was the duty of the defendant to provide other, different, safe, and suitable safeguards, platforms, passageways, and appliances to enable the deceased to prosecute his required work with safety; and that, although the full extent of the dangers to which deceased would be subjected by such neglect of duty on the part of the defendant was not fully known to deceased, yet that deceased did apprehend some increased dangers by reason thereof, and requested of the person in charge of the works for defendant that some other different and safer platforms, passageways, or appliances should be furnished him in the prosecution of his required labors, and he was assured that such additional safeguards, passageways, ropes, and other appliances would be furnished as the work should progress; and, relying thereon, the deceased continued in such said employ until and up to the receipt of the fatal injury by him in such said employ as hereinbefore stated; yet the defendant wholly disregarded its duty in that behalf.” The answer to the first petition was allowed to remain on file as an answer to the amended petition, and was so treated. There was a trial of the issues, and at the close of the introduction of the testimony counsel for defendant moved the court, for certain stated reasons, to instruct the jury to return a verdict for defendant. This motion was sustained, and the jury were instructed accordingly, and returned a verdict for defendant, in conformity to which, after motion for new trial heard and overruled, judgment was entered.

The counsel for plaintiff state in their brief that they present but two points for the consideration of this court: “First. Can the plaintiff recover without first having proven that deceased called the attention of defendant to the lack of necessary safeguards, and got a promise from defendant to supply them, but received the fatal injury before they were supplied? Second. Did the trial court commit an error in taking the case from the jury because these facts were not fully proven?” The correct solution of and answer to the first depends to a large extent upon what were the duties and rights which reciprocally devolved upon and accrued to the respective parties to the contract of employment, by reason of such contract, by entering into it, or at all times during its continuance, and especially in reference to any dangers necessarily or probably incident or attached thereto. There is no question which can successfully be raised in regard to the correctness of the rule of law which sets forth the duty of the employer to provide suitable and safe appliances, proper for the use of the employé in the performance of the labor to which he is assigned, and to properly guard the employé from dangers; but it is also true that when a party becomes the employé of another to perform certain labor he assumes all risks ordinarily...