Elliott v. Carter White-Lead Company
| Decision Date | 19 January 1898 |
| Docket Number | 7673 |
| Citation | 73 N.W. 948,53 Neb. 458 |
| Parties | WILLIAM M. ELLIOTT v. CARTER WHITE-LEAD COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before BLAIR, J. Affirmed.
AFFIRMED.
Weaver & Giller, for plaintiff in error.
I. R Andrews, contra.
William M. Elliott sued the Carter White-Lead Company to recover for personal injuries. At the close of the plaintiff's testimony the jury, in obedience to an oral instruction of the trial court, returned a verdict for the defendant. A motion for a new trial was overruled, and judgment was entered against the plaintiff in accordance with the verdict. Subsequently, on motion of the defendant, an order was entered requiring that security for costs be given by the plaintiff, who prosecutes this error proceeding.
The defendant is the owner and operator of a factory in the city of Omaha for the manufacture of white lead, and plaintiff was in its employ. An inclined wooden elevator was used by the defendant to hoist pigs of lead from railway cars up and into a vat on the inside of the company's building. This elevator consisted of two pine planks about fourteen feet long, nine inches wide, two inches thick on the upper edge and three inches on the lower, fastened or bolted parallel to each other, and about two feet apart, so as to permit the passage between them of an endless chain with an apron attachment. This elevator stood at an angle of about 45 degrees, with one end resting on the foundation of the building and the other passing through the floor above into the room containing the vat. A pig of lead weighing about 100 pounds being placed on the lower part of the elevator was pushed or slid up and along the upper edges of said planks by the apron attached to the endless chain to the top of the elevator, where it fell into the vat, the apron continuing on around; and on reaching the bottom at each revolution another pig of lead was placed on the apron, which in like manner was elevated to the vat in the room above. The continual sliding of the pigs of lead had worn several scallops on the surface of the upper edges of the two planks to the depth of about one-fourth of an inch. A few hours prior to the injury hereafter mentioned the elevator was repaired by nailing on the upper edge of each plank, for the entire length, a strip of iron two inches wide and about one-eighth of an inch in thickness. These strips of iron were fastened with eight-penny nails driven about nine inches apart and near the center of the scallops. Shortly after said repairs were completed plaintiff assisted in unloading a car of lead. His portion of the work was to carry the pigs of lead from the car and place them on the elevator, one at a time, in proper position to be pushed up by the apron. After he had been thus at work between three and four hours, a pig of lead, which he had placed on the elevator, was carried in the usual way by the apron until it was within a short distance of the top, when one end thereof, it is claimed caught upon a protruding nail which threw the pig of lead down the elevator and upon the foot of plaintiff, causing the injury which is made the basis of this action.
It is urged that the elevator was defective and out of repair, and that the defendant was negligent in not instructing the plaintiff in the use of the same and in not apprising him of the danger and hazard of the work he was called upon to perform. By the undisputed testimony it was established that the elevator had just been repaired and placed in a safe condition for use, and that the pig of lead which caused the injury was the first one to fall after the making of the said repairs. Moreover, the specific act of negligence charged in the petition is that the nails used for fastening the iron bands to the planks were so small that they worked loose, and protruded and extended above the upper surface of said bands enabling the nails to catch the lead and causing it to fall upon plaintiff's foot. This averment is not sustained by a scintilla of evidence. On the contrary, it is claimed in the brief of plaintiff that the accident was occasioned by the weight of the pig of lead depressing the iron strip down into one of the...
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