O'Donnell v. Baker Ice Mach. Co.
| Decision Date | 16 April 1925 |
| Docket Number | No. 23048.,23048. |
| Citation | 203 N.W. 635 |
| Parties | O'DONNELL v. BAKER ICE MACH. CO. ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
An electric company engaged in furnishing to the public electricity for power and light purposes and authorized to use the streets, alleys, or public places for its poles and wires, must use the highest degree of care and skill in protecting the public from injury therefrom; and in the application of this principle consideration must be given to the dangerous character of the current transmitted, the fact that whether it is high or low tension current is in no way indicated by the appearance of the wires, the proximity of the public in the use of the highways and public places, and all elements which tend to make the transmission of the current dangerous to those who, with right to be there in pursuit of business or pleasure, might come in contact therewith. But the company owes no such duty to a trespasser or mere licensee engaged in an operation of which the company had no notice and which it could not anticipate or foresee.
Where an owner, having in contemplation the construction of a manufacturing plant, enters into contract for the construction thereof, and requires such general contractor to take out insurance for the benefit of his employees in compliance with the Workmen's Compensation Act, and such contractor sublets a portion of the work requiring the subcontractor, in like manner as to insurance, to comply with the Workmen's Compensation Act, and an employee of the subcontractor in the course of his employment is injured, and applies for and receives compensation under the terms of the act, such employee cannot maintain an action for damage occasioned by said injury against either the owner or the contractor.
Appeal from District Court, Douglas County; Wakeley, Judge.
Action by Stephen O'Donnell against the Baker Ice Machine Company and others. From a judgment dismissing the action, plaintiff appeals. Affirmed.
Bigelow & La Violette, of Omaha, for appellant.
Kennedy, Holland, De Lacy & McLaughlin, Brogan, Ellick & Raymond, and Byron G. Burbank, all of Omaha, for appellees.
Heard before MORRISSEY, C. J., ROSE, GOOD, and EVANS, JJ., and REDICK and SHEPHERD, District Judges.
In this action the plaintiff, Stephen O'Donnell, sues to recover damages for personal injuries received by him through an electric shock transmitted through wires of the Nebraska Power Company on July 6, 1921. The action is brought against the Baker Ice Machine Company (hereinafter called the machine company), the Omaha Steel Works, Andrew C. Busk, and the Nebraska Power Company (hereinafter called the power company), all of the defendants except Andrew C. Busk being corporations.
The Omaha Steel Works is the plaintiff's immediate employer, a subcontractor, and is made defendant because from it, or its insurer, the plaintiff had received compensation under the provisions of the Workmen's Compensation Act. The facts upon which the action is based are hereinafter set forth. The Omaha Steel Works objects to the control or prosecution of this action by the plaintiff, it having, as the employer of the plaintiff, under the provisions of the Workmen's Compensation Act, on plaintiff's application, paid him compensation. The other defendants filed separate answers. All admit the injury, but deny the serious character thereof, and deny all allegations not otherwise answered. All defendants allege that the Omaha Steel Works, pursuant to and in compliance with the provisions of the Workmen's Compensation Act, carried insurance for the protection of the plaintiff, and that he has received large sums of money, and that there are obligations for large sums to be paid in the future under the insurance policies secured by the Omaha Steel Works, and that the plaintiff is not the real party in interest; that in compliance with the Workmen's Compensation Act the machine company had required contractor Busk, and he in turn required the Omaha Steel Works, to carry insurance for the benefit of employees, which requirement was, in each case, complied with. The defendants each deny negligence on his or its part; and allege contributory negligence on the part of the plaintiff; that the danger was open, apparent, and obvious, known and assumed by the plaintiff; that the wires from which came the current of electricity by which plaintiff was injured were maintained by the power company, under its franchise from the city of Omaha, along and upon the alley, which, at the time of the accident, had not been vacated, and over which alley the defendants Busk and the machine company had no control.
Although the plaintiff applied for and received permission to file replies to the answers of the several defendants, no reply is on file. At the close of the plaintiff's evidence, and after he had rested, each defendant moved for a dismissal of the case. These motions were sustained. A motion for a new trial was filed by the plaintiff and overruled. A judgment of dismissal was entered, and from this judgment the plaintiff appeals.
[1] The facts material to the consideration of the case are: The machine company was engaged in the construction of a factory, consisting of three buildings, which was to cover a block of ground in the city of Omaha between Pratt street on the north and Evans street on the south, and between Fourteenth street on the east and the alley between Fifteenth and Sixteenth streets on the west. Proceedings were pending before the city council for the vacation of that portion of Fourteenth street and that portion of the alley west from Fourteenth street within this tract. Through this alley the power company, under and within the limitations of a franchise granted by the city, had constructed and maintained a line of poles about 30 feet high, from which was suspended a line of wires about 25 to 30 feet from the ground carrying an electric current of 2,300 volts. The poles carrying the wires were 110 feet apart. The machine company had let a contract to the defendant Busk for the construction of the plant and had required him to carry insurance for the benefit of his employees in compliance with the Workmen's Compensation Act. Busk had sublet the steel work, necessary to the completion of his contract,to the Omaha Steel Works and, in turn, had required it to protect its employees in like manner. The Omaha Steel Works was the immediate employer of the plaintiff who was a structural ironworker. The construction of the building had progressed far enough so that foundations had been placed over the site for the proposed buildings. On July 5 the Omaha Steel Works had brought upon the ground many of its tools, and included in which was a locomotive derrick of 10 tons capacity which had been brought to the edge of the building site over tracks of a railroad company. The derrick consisted of a truck supporting and carrying a platform, upon which was placed the power plant, the hoisting apparatus, and a 55-foot boom, over the end of which, through a sheave, the cable used in hoisting and lowering material ran. The boom could be raised or lowered, that is, made to assume nearly an upright or vertical position, or to lie down and assume a horizontal position, and could work when in any of the intermediate points of the arc described from its vertical to its horizontal position. The derrick was so constructed that it could be moved by its own power. This was accomplished by having sections of track about 30 feet in length which, by means of the derrick, could be lifted from behind and placed in front thereof, and over which, when properly placed and secured, it could then be made to move forward. The sections of the track were placed together in a manner similar to the ordinary railroad track. These track sections were joined together with the ordinary fish-plates used in railroad construction. The employees of the Omaha Steel Works had worked on July 5, and until about 4 o'clock on July 6, the time the accident occurred. The plaintiff was a member of the crew engaged in moving the derrick onto the building site, and it was a part of his duties to place and bolt the fish-plates joining the section being placed to the one already in position. One member of the crew was placed upon the derrick platform in charge of the power and hoisting machinery, and operated the same in obedience to signals given to him by a foreman or acting foreman, and frequently operated the power plant of the derrick without having in actual view the effect he was producing. At the time of the injury the plaintiff was sitting astride of or beside one of the rails of this track, and, to pull it into place, had inserted in the holes through the fish-plate and the rail a wrench, the action of which was similar to that of a “drift-pin,” drawing the rail and the fish-plate more nearly to the desired position which would permit of the insertion of the bolt through the fish-plates and rail. While so doing, his position was, of necessity, stooped or inclined over his work, and his vision directed downward, and he could not see the position of the cable with reference to the wires while employed as he was when injured. The crew with the derrick, laying track in the manner described, had approached closely to the power company's wires, and at a point about 6 to 8 feet from one of the poles supporting the same. The evidence would indicate that the cable running from the top of the boom to the track section, upon which the plaintiff was working, had approached not nearer than 12 inches from the wires. The plaintiff had been working in practically the same position, in which he was when injured, for 5 minutes, when the cable suddenly became heavily charged with the current carried by the wires. No one explains why or how it occurred, but the electric wires and the derrick cable had come together and required the application of a great force to...
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