Dehning v. Detroit Bridge & Iron Works
| Decision Date | 07 December 1895 |
| Docket Number | 5904 |
| Citation | 65 N.W. 186,46 Neb. 556 |
| Parties | CHRIS DEHNING, ADMINISTRATOR, v. DETROIT BRIDGE & IRON WORKS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before IRVINE, J.
AFFIRMED.
Bradley & De Lamatre, for plaintiff in error:
The employer, by law, owes a duty toward the employe independent of any action on the part of the employe, and that is, to furnish suitable and safe machinery and appliances for the performance of the labor required of the employe, and the more dangerous or hazardous the employment the greater the care and duty. (Toledo, W. & W. R. Co. v Fredericks, 71 Ill. 294; Camp Point Mfg. Co. v Ballou, 71 Ill. 417; Richardson v. Cooper, 88 Ill. 270.)
Where the servant is injured by reason of defective appliances placed in his hands by the master or his agent, the master is liable for damages, unless he can clearly show that he has used due care in the selection or manufacture of the same.
The following cases were also referred to in the argument of counsel for plaintiff in error: Crutchfield v. Richmond & D. R. Co., 78 N. Car., 300; Rummell v. Dilworth, 111 Pa. 343; Lent v. Burlington & M. R. R. Co., 11 Neb. 204; Holmes v. Boydston, 1 Neb. 358; Johnson v. Missouri P. R. Co., 18 Neb. 696; Smith v. Sioux City & P. R. Co., 15 Neb. 583.
Breckenridge & Breckenridge, and L. F. Crofoot, contra:
Plaintiff's decedent assumed the ordinary risks of employment. (Sjogren v. Hall, 18 N.W. [Mich.], 812; Richards v. Rough, 53 Mich. 212; Norfolk & W. R. Co. v. Jackson, 85 Va. 489; Baker v. Western & A. R. Co., 68 Ga. 699; Hough v. Texas & P. R. Co., 100 U.S. 213; Marsh v. Chickering, 101 N.Y. 396.)
The fact that an accident has happened raises no presumption of negligence against the person sought to be charged.
Under the undisputed facts defendant is not liable. (Titus v. Bradford, B. & K. R. Co., 20 A. [Pa.], 517; Knight v. Cooper, 14 S.E. [W. Va.], 999; Anthony v. Leeret, 105 N.Y. 591; Moulton v. Gage, 138 Mass. 390; Sweet v. Ohio Coal Co., 47 N.W. [Wis.], 182; Gibson v. Erie R. Co., 63 N.Y. 449; Naylor v. Chicago & N. W. R. Co., 53 Wis. 661.)
The court properly directed a verdict for defendant. (Hiatt v. Brooks, 17 Neb. 38; Osborne v. Kline, 18 Neb. 344; Lea v. McLennan, 7 Neb. 143; Grant v. Cropsey, 8 Neb. 205; Reynolds v. Burlington & M. R. R. Co., 11 Neb. 186; Hammond v. Jewett, 22 Neb. 363; Hall v. First Nat. Bank of Fairfield, 30 Neb. 99; Burns v. City of Fairmont, 28 Neb. 866; Berger v. St. Paul. M. & M. R. Co., 39 Minn. 78.)
HARRISON, J. IRVINE, C., took no part in the decision.
The opinion contains a statement of the case.
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 thirty 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 employe 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: 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 negligence 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 therein 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 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 employe in the performance of the labor to which he is assigned and to properly guard the employe from dangers; but it is also true that when a party becomes the employe of another...
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