Lee v. Smart

• Decision Date: 18 June 1895
• Citation: 63 N.W. 940,45 Neb. 318
• Parties: LEE v. SMART.
• Court: Nebraska Supreme Court

45 Neb. 318

63 N.W. 940

LEE

v.SMART.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

Where a servant, in obedience to the requirements of his master, incurs the risk of machinery or appliances which, although dangerous, are not of such 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.

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

Action by Elvene Smart against Charles R. Lee. There was a judgment for plaintiff, and defendant brings error. Affirmed.Tiffany & Vinsonhaler, for plaintiff in error.

I. J. Dunn and J. J. O'Connor, for defendant in error.

POST, J.

This was an action in the district court for Douglas county, in which the plaintiff therein, defendant in error, recovered for personal injuries received through the alleged negligence of the defendant therein, in providing him with a defective wagon and insufficient team for the hauling of lumber, and in overloading said wagon. The evidence in the bill of exceptions establishes the following facts: On the 9th day of July, 1890, the plaintiff below, who will be hereafter referred to as the plaintiff, was employed by the defendant, a lumber merchant in the city of Omaha, as teamster, and acted in said capacity until the receiving of the injuries hereafter mentioned, on the 11th day of the same month. The plaintiff, on the day last named, was ordered by the defendant to deliver a load of lumber in the city of Council Bluffs, Iowa, which is reached by a wagon bridge over the Missouri river. The wagon road on the Council Bluffs side of the river is much below the level of the bridge, which is reached from that side by a long approach. On descending from the bridge along said approach on the morning in question,the team driven by the plaintiff became unmanageable, owing to the pressure of the heavily loaded wagon, which was not supplied with a brake of any kind. Being unable to control said team, and being in fear of imminent danger from the crushing or capsizing of the wagon, he jumped therefrom, and, in so doing, received the injuries for which he claims in this action.

The alleged negligence consists in the overloading of the said wagon, and the failure to supply it with a break, or appliance of like character. The argument in this court is directed mainly to one proposition, viz. that the plaintiff was fully advised of the condition of the wagon, and the character of the load which had been intrusted to his care, and that he accordingly assumed the risk of the employment in which he was engaged at the time of the injury. It has been many times asserted, and may be accepted as a general rule, that a servant who knows, or by the exercise of reasonable diligence could know, of any defect or imperfection in the things about which he is employed, and continues in the service without objection, and without promise of change, is presumed to have assumed all the consequences resulting from such defects, and to have waived the right to recover for injuries caused thereby. A modification of that rule was, however, recognized by this...