Maxson v. J. I. Case Threshing Mach. Co., No. 15,095.

• Court: Supreme Court of Nebraska
• Writing for the Court: PER CURIAM.
• Citation: 116 N.W. 281,81 Neb. 546
• Parties: MAXSON v. J. I. CASE THRESHING MACH. CO. ET AL.
• Decision Date: 23 April 1908
• Docket Number: No. 15,095.

81 Neb. 546
116 N.W. 281

MAXSON
v.
J. I. CASE THRESHING MACH. CO. ET AL.

No. 15,095.

Supreme Court of Nebraska.

April 23, 1908.

Syllabus by the Court.

If an agent is given sole charge of the preparation and exhibition of cumbersome and complicated machinery, and calls to his assistance in that occupation one who in good faith enters upon such work, the person thus employed is not a volunteer or trespasser, but for the time being assumes the relation of servant to the master.

If the assumption of a risk not usually and ordinarily incident to the service is relied on as a defense in an action against the master for negligence, such assumption of risk must be specially pleaded.

Evidence examined, and found sufficient to warrant the submission of the issues presented to the jury.

It is not error to refuse to give instructions, where the substance thereof is included in instructions given by the court on its own motion.

It is within the discretion of the court to give or refuse to submit to the jury special findings.

The scope of expert evidence is not restricted to matters of science, art, or skill, but extends to any subject in respect to which one may derive by experience special knowledge.

Mere failure to charge a jury upon a particular proposition of law is not reversible error, unless a suitable instruction has been tendered.

This court will disregard any error or defect in instructions given or error in the failure or refusal to give instructions requested, where the action of the trial court did not affect the substantial rights of the litigants.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Thayer County; Hurd, Judge.

Action by Archie Maxson against the J. I. Case Threshing Machine Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

[116 N.W. 281]

C. L. Richards and Cary, Upham & Black, for appellants.

F. M. Hall, W. E. Goodhue, and C. C. Marlay, for appellee.

ROOT, C.

Plaintiff recovered a judgment against defendants for personal injuries inflicted on him in the loss of his right arm while assisting defendant Thorpe in an attempt to place a belt in position upon a threshing machine. The alleged negligence consists in: (1) Failure and neglect to instruct plaintiff as to the danger inherent, but not obvious, in the employment he entered. (2) In furnishing a belt that was too short, and not intended for that make of machine. (3) Because an engineer was not provided for the engine that operated the separator. (4) In attempting to place the belt upon the feeder and cylinder pulleys while the latter was in rapid motion, and no one was in charge of the engine.

Viewed in the favorable light plaintiff is entitled to have the evidence considered, because the jurors found for him, the testimony tends to establish that plaintiff had been reared on a farm, but had picked up considerable knowledge as a machinist and had worked in a small machine repair shop in the village of Hebron. His employer was a Seventh Day Adventist, and Maxson was out of work on Saturdays. Defendant corporation had an agent one Kuhlman, who sold its machines in Hebron. There is nothing in the record to show the scope of Kuhlman's authority, nor does it seem to be material in adjusting the rights of the parties to this litigation. Thorpe was in the employ of the defendant corporation, the J. I. Case Threshing Machine Company, as “salesman and expert in operating machinery, and anything pertaining to their work.” He exhibited and demonstrated his employer's machinery in his territory which comprised some four counties in southern Nebraska. In this branch of work he had complete control, according to his testimony. The evidence pertaining to the scope of Thorpe's work and his authority must be gathered from his testimony, which went in without objections, and from the circumstances attendant upon his duties as appear in the evidence. It seems to have been the purpose

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of the defendant corporation to exhibit a steam thresher in Hebron on Saturday, May 21, 1904, and to that end it shipped an engine and separator to said city. Plaintiff noticed the outfit, and Friday evening inquired of Kuhlman and his boy concerning the machinery, and was informed it would be exhibited the following day. The boy said help would be needed. Early Saturday morning plaintiff assisted in placing brasses on the engine, and started a fire in the furnace, so that steam was up when Thorpe arrived at 9:15 in the forenoon. Thorpe at once commenced placing the machinery in condition for display, and made a general statement to the men and boys congregated about the machine, “You boys get out of here now,” to which Maxson answered, “Does that mean me?” and in response Thorpe said, “No; I want you to stay here and help me.” From thence till the accident Maxson assisted Thorpe, doing what he was directed by said expert to do, placed the engine in position for the big belt, oiled the pulleys, assisted in placing the power belt and blower belt upon their respective wheels and pulleys, attended to the engine when it stopped on center, and waited generally upon Thorpe. The power from the engine operates through a belt which connects with a shaft situated immediately beneath and across the bed, and about midway between the ends of the separator. A belt connects this shaft with one that turns the cylinder, a ponderous affair, weighing 1,100 pounds. The cylinder shaft is five feet and eight inches above the ground, and in addition to carrying the feeder pulley, which is next to the separator, maintains another pulley at the outer extremity of the shaft, leaving a space of about four inches on the shaft between the pulleys. At the extreme top and end of the separator is a self-feeding attachment which is operated by a belt attached to a pulley upon the feeder shaft and a pulley upon the cylinder shaft. After Thorpe and plaintiff had placed the power belt upon the engine and separator, and connected the cylinder shaft so it was in motion, making some 220 revolutions per minute, Thorpe took a belt so as to connect the cylinder pulley with the one on the feeder shaft. This belt was 15 feet and 4 inches in length from end to end, or 7 feet and 8 inches with the ends connected. Thorpe stood on the top of the separator, and directed plaintiff to place the belt on the revolving cylinder pulley of the cylinder shaft. Plaintiff thereupon stood upon the front wheel of the separator, with his right hand against the body thereof, and beneath the strands of the belt, and with his left hand placed the belt upon the pulley. Thorpe then tried to put the upper end of the belt, which he retained in his hands, upon the feeder pulley, but was unsuccessful, and permitted the belt to sag back so that it became disengaged from the cylinder pulley. Plaintiff then shouted to Thorpe not to pull the belt, but either he was not heard or not heeded. Thorpe tightened the belt. It was pulled from his hands, and in the fraction of a second plaintiff's arm was torn or knocked from his body close to the shoulder. Experts testified the operation attempted was a dangerous one, and that plaintiff's position was one of peril. There was testimony tending to prove that the belt used was not adapted to the separator; that it was an old one, and too short; and that after the accident Thorpe laced in an extension, and thereafter used the belt. Thorpe explains that the belt was manufactured to be used on the separator without a tightener. This attachment seems to be an improvement adopted about 1904 by the defendant corporation, and consists of a small pulley fixed to a stationary shaft which protrudes from the side of the separator at a point between and in line with the axes of the feeder and cylinder pulleys. This pulley was arranged so that it might be raised or lowered, and the upper strand of the feeder belt, when the tightener was used, was made to pass under the tightener pulley. The tightener might or might not be used. In the former case it necessitated a belt some inches longer than the other. Thorpe also says that he laced in the extra strip of belting so that he might use the tightener; that the old belt was used without the tightener after the accident and before the noon hour, and during the noon intermission he took the belt off, laced in the extension, and thereafter used the belt with the tightener. There was testimony to to the effect that a tightener was not attached to the separator. Thorpe denies employing plaintiff or requesting him to do anything, and denies that plaintiff assisted him at all. Thorpe also says he did not need any assistance in preparing and exhibiting the machinery, and Davis, defendant's expert, says assistance is not necessary or furnished experts engaged in exhibiting threshing machinery. The statements of Thorpe are in many instances contradicted by the testimony of the bystanders, and the evidence given by plaintiff corroborated.

1. Defendants strenuously insist the testimony does not establish the relation of master and servant between plaintiff and the defendant corporation, and that the court improperly instructed the jury on this point. The court instructed the jurors: “The plaintiff alleges that he was employed by the defendants at the time he received the injury complained of; that is, he was a servant of the defendant J. I. Case Threshing Machine Company. As to this, you are instructed that there is no dispute but that the threshing outfit was owned by the defendant Case Company, and was in charge of Thorpe, who was then an employé of the company; and, if you further find it established by a fair preponderance of the evidence that Thorpe's employment and duty was to put the engine and separator in operating condition in order

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to operate the same for the purposes of exhibition, and, in order to carry out that employment, he requested the plaintiff Archie Maxson to assist him therein, and the said...