Fremont Brewing Co. v. Hansen

• Decision Date: 01 July 1902
• Citation: 91 N.W. 279,65 Neb. 456
• Parties: FREMONT BREWING CO. v. HANSEN.
• Court: Nebraska Supreme Court

65 Neb. 456

91 N.W. 279

FREMONT BREWING CO.

v.HANSEN.

Supreme Court of Nebraska.

July 1, 1902.

Syllabus by the Court.

1. A servant assumes the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of his age, experience, and capacity by the use of ordinary care; and he is bound to take notice of the ordinary operation of familiar laws of gravitation, and he assumes the risks necessarily incident thereto.

2. When the evidence introduced by the plaintiff is insufficient to prove a cause of action, it is the duty of the court, upon the request of the defendant, to instruct a verdict in his behalf.

Commissioners' opinion. Department No. 3. Error to district court, Dodge county; Hollenbeck, Judge.

Action by Broder Hansen against the Fremont Brewing Company. Judgment for plaintiff. Defendant brings error. Reversed.Courtright & Sidner, for plaintiff in error.

F. Dolezal, for defendant in error.

AMES, C.

The defendant in error, who will hereafter be called the “plaintiff,” was employed by the defendant brewing company in the capacity of a general workman in and about its establishment. He was strong, healthy, mature, and intelligent, and capable of handling heavy weights, in the doing of which the duties of his employment, to a considerable extent, consisted. In one of the rooms of the brewery was an iron tank, of dimensions, when in position for use, of about 10 feet in length by 9 1/2 feet in width, and 6 feet in height. It had been lifted up for repairs, and was resting upon one of its side or edges. Along the sides were three so called flanges, extending several inches from its body,--one at the bottom, one at the top, and one midway between. The weight of the structure was between one and two thousand pounds,--probably about twelve to fifteen hundred pounds. The plaintiff, together with some 15 or 16 other employés of the company, was called upon to tip the tank over from its side, so that its bottom would rest upon the floor, in position for use. This was done by the foreman and several of the men lifting upon the upper flange, then resting upon the floor, so as to throw the tank forward towards the east, while the remainder of the force ranged themselves on the other three sides, and grasped the middle flanges, for the purpose of steadying the motion and breaking the fall of the structure. The plaintiff came into the room after the operation had been begun, and, in obedience to a directionby the foreman, took his place at what was then the upper, and, after the task had been accomplished, the eastern, side of the tank. After the tank had moved so far over as to shift its line or center of gravitation, its motion was, as was natural, considerably accelerated, and when it reached the floor it caught underneath it one of the plaintiff's feet; inflicting an injury, to recover damages for which this action was brought. The evidence adduced at the trial was that of the plaintiff alone. The jury found a general verdict for the plaintiff, and, in response to special inquiries, found that he was not guilty of negligence, but that the defendant was guilty of negligence, through or by its foreman, which “consisted in his neglect to properly direct and superintend the men ordered by him to turn over the tank.” We are unable to find in the record any sufficient evidence of such negligence. The only evidence touching this matter to which counsel have called our attention is the following testimony by one of the men, a boiler maker by trade, who was engaged in the operation, and who was called and examined by counsel for the plaintiff, in part as follows: “Q. Do you know what the proper and ordinary way of turning such a tank as this was would be? A. I guess I do in my own way, while other men may have different ways. Q. You have worked at this kind of work, you say, for the past 16 years,--this kind of work; that is, in the turning of large bodies of this kind, while you would be conducting the repair of the same? A. Yes, sir. Q. You may go on and state what would have been the proper and ordinary manner, method, and way for men handling such tanks, in such a position as this tank was in, to have turned it over? A. Well, in the position the tank was in, it would be just the way I would do it. Q. That is, you mean you would turn it over to the west? A. Yes, sir. Q. But in the...