Metz v. Chicago, Burlington & Quincy Railroad Company
| Decision Date | 15 February 1911 |
| Docket Number | 16,288 |
| Citation | 129 N.W. 994,88 Neb. 459 |
| Parties | ANDREW J. METZ, APPELLEE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.
AFFIRMED.
James E. Kelby, Halleck F. Rose, Frank E. Bishop and Hazlett & Jack, for appellant.
Shepherd & Ripley, contra.
FAWCETT, J. not sitting.
In January, 1908, the defendant was constructing a well about 30 feet in diameter adjacent to its pumping station near the city of Lincoln, and the plaintiff was injured while in its employ in that service. The excavation was about 55 feet deep, and a steam pump installed at the bottom of the well was used to discharge, through a four-inch pipe, the inflowing water, so that the well might be dug deeper. This pipe rested against three 12 by 14 cross-timbers, one at the top of the well, another 14 feet below, and a third 14 feet further down. A piece of 2 by 6 plank was spiked to each beam close to and on either side of the pipe, and a similar piece of plank joined the other two pieces so as to enclose the pipe. The beams were securely fastened at each end to steel rails which extended across the well at right angles to the beams and were anchored in a rock wall which had been built around the exterior of the well. The normal operation of the pump caused the pipe to vibrate, and whenever sand or particles of rock interrupted that operation the pipe would "buck" and churn so as to spring these beams as much as two inches, and the pipe itself would rise and fall as much as five inches. While the plaintiff was working at the bottom of the well, two of the planks became detached and fell upon his head, cutting his scalp and injuring him more or less seriously. The plaintiff prevailed, and the defendant appeals.
The defendant severely criticises the court's charge, and stoutly maintains that the instructions requested by it should have been given. The plaintiff defends the charge, and says that in any event, under the issues and the evidence, no verdict other than for the plaintiff should have been returned. The facts stated in the petition will sustain a judgment in the plaintiff's favor. The defendant by way of answer denies any negligence on its part, and alleges that the plaintiff's injuries were caused by his own negligence and the negligence of his fellow servants, and pleads assumption of risk.
At the time the plaintiff was injured, chapter 48, laws 1907 (Comp St. 1907, ch. 21, sec. 3 et seq.) was in force, and by its terms a railway company operating railway cars in Nebraska is made liable to any of its employees injured by reason of the negligence of a fellow servant while the injured employee is engaged in construction or repair work. In Swoboda v. Union P. R. Co., 87 Neb. 200, 127 N.W. 215, this act was held to be a valid law. The petition and the proof establish that the well in question was used in connection with the defendant's railway, and the defendant pleads that the plaintiff was employed in its water supply service at the time of the injury. The plaintiff was within the...
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