Malm v. Thelin

• Citation: 47 Neb. 686,66 N.W. 650
• Parties: MALM v. THELIN.
• Decision Date: 18 March 1896
• Court: Supreme Court of Nebraska

47 Neb. 686

66 N.W. 650

MALM

v.THELIN.

Supreme Court of Nebraska.

March 18, 1896.

Syllabus by the Court.

1. Where a question is asked a witness, in itself proper and not open to objection, the adverse party does not waive his right to object to an answer to such question containing inadmissible matter by not having objected to the question itself.

2. In such case, the admissibility of testimony contained in the answer is properly presented for review by a motion to strike out the answer and an exception to an order overruling such motion.

3. A servant assumes risks arising from defective appliances used or to be used by him, or from the manner in which the business in which he is to take part is conducted, when such risks are known to him, or apparent and obvious to persons of his experience and understanding, if he voluntarily enters into the employment or continues in it without complaint or objection as to the hazards. Railway Co. v. Baxter, 60 N. W. 1044, 42 Neb. 793, followed.

4. The presumption is that such risk has been assumed by the servant; and, in order to recover, the burden is upon the plaintiff to establish one of the exceptions to the rule.

5. In his petition, he must plead the existence of the facts creating such exception.

6. Evidence tending to show that defective machinery was used under a promise by the master to remove the defect held inadmissible, where such promise had not been pleaded.

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

Action by Mary Thelin against Charles E. Malm. There was a judgment for plaintiff, and defendant brings error. Reversed, with directions.John P. Breen, for plaintiff in error.

Gustave Anderson and C. P. Hallegan, for defendant in error.

IRVINE, C.

The defendant in error brought this action against the plaintiff in error to recover on account of injuries sustained by defendant in error in operating machinery while in the employ of the plaintiff in error, a laundryman. She recovered judgment for $2,500. For convenience, the parties will be referred to as plaintiff and defendant as their positions were in the district court.

The petition, after alleging that the defendant was the owner of and operated a laundry in Omaha, and that the plaintiff was his servant in the operation thereof, alleged that there was, in the laundry, a certain machine called a “mangle,” which was, on June 27, 1890, incomplete, imperfect, unsafe, and wholly unfit for use, in that it had no guard or protection for the fingers or hands at the point where the clothes were received into the machine; that the defendant well knew of the defect in the machine, but negligently used and operated said machine, and directed the plaintiff to operate the same; that, on said 27th of June, while plaintiff was using said machine, as directed by the defendant, she had three fingers of her left hand cut and bruised by said machine, so that amputation was necessary; “that said injury was caused by or through no fault or negligence on the part of said plaintiff, but because, and solely on account of, the incompleteness of said machine, and the want of the aforesaid guard or protection on said machine, and the recklessness, carelessness, and negligence on the part of said defendant for ordering or directing this plaintiff to work with said machine while said machine was in the condition hereinbefore set forth.” The answer admits that defendant owned and operated the laundry in question, that plaintiff was his servant, that he kept a mangle in said laundry, and that plaintiff was injured therein, and denies all other allegations of the petition. An accord and satisfaction were also pleaded; but it will not be necessary, at this time, to notice this defense. It will be observed that the petition does not charge that plaintiff was inexperienced, or that she was not aware of the defect in the machine, and it is not charged that she used it relying on the promise of the defendant to repair the defect. The evidence, without contradiction, shows that, before plaintiff was directed to use the machine, attention was specially called to the defect, and that she was aware thereof.

At this point in plaintiff's testimony, the following occurred: “You may state whether or not he [the defendant] said anything to you in regard to using the mangle? A. Yes; the first day we was using the mangle, he said, ‘We will get that guard as soon as we can.’ Mr. Breen: What is that answer? A. He will get that guard as soon as he can get it. (Defendant objects to the last answer, and moves that it be stricken out, on the ground that there is no such issue in the pleadings as a promise to repair the defect in this machine. Motion overruled, to which defendant excepts.)” The overruling of this motion is assigned as error. In considering this assignment, the question first arises whether, under the circumstances, the question having been answered without objection, the overruling of a motion to strike out the testimony is open to review. It has been several times held that, where a question is answered without objection, objections to the evidence are waived, and cannot thereafter be presented by a motion to strike out the evidence so admitted. Palmer v. Witcherly, 15 Neb. 98, 17 N. W. 364;Oberfelder v. Kavanaugh, 29 Neb. 427, 45 N. W. 471;Insurance Co. v. Richardson, 40 Neb. 1, 58 N. W. 597;Brown v. Cleveland, 44 Neb. 329, 62 N. W. 463. In all of these cases, however, it either affirmatively appears from the report, or it is a fair presumption from the facts stated, that the questions which elicited the objectionable evidence were of such a...