Neice v. Farmers Co-Operative Creamery & Supply Company
| Decision Date | 14 December 1911 |
| Docket Number | 17,003 |
| Citation | 133 N.W. 878,90 Neb. 470 |
| Parties | FRED NEICE, APPELLEE, v. FARMERS CO-OPERATIVE CREAMERY & SUPPLY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county. WILLIS G. SEARS JUDGE. Affirmed.
AFFIRMED.
Montgomery Hall & Young, for appellant.
Sullivan & Rait, contra.
The plaintiff was employed by the defendant in its butter factory in Omaha. He was injured by the explosion of a steam trap and brought this action to recover damages. The jury rendered a verdict in his favor for $ 3,000, and from the judgment entered thereon the defendant has appealed.
The defendant, in the manufacture and sale of butter and ice cream, occupied a three-story building with basement, and employed an engineer, fireman, butter-makers and other workmen. The plaintiff was employed in what was called a "churn room." The accident complained of occurred in what was called the "boiler room." In this latter room there is a trap or basin which is connected with cast iron pipes with the boiler, and also by similar pipes with the public sewer. It is used for "draining or blowing off the boiler." In so using it, the engineer opens the valves in the boiler and permits the steam and water to pass into the pipe, and thence to the sewer. The trap is covered by a circular steel or cast-iron plate two or three feet in diameter and an inch in thickness, secured to the trap by bolts which are set in the concrete floor. When the accident occurred, the plaintiff was in the boiler room, and had just finished eating his lunch and was standing near the trap. In the absence of the engineer, the fireman, as appears to have been his custom under such circumstances, opened the valves communicating with the trap, and the explosion occurred, causing the plaintiff's injury. The plaintiff alleges that the fireman "did negligently and recklessly open the blow-off valves and cocks of the boiler and permitted great quantities of steam and water under enormous pressure to pass from the boiler into said basin," which caused the explosion. The defendant insists that the verdict and judgment are not supported by the evidence.
1. It is said that the plaintiff "while in the trap room eating his lunch was a mere licensee, and, there being no proof of wanton or wilful injury to him by appellant or its fireman, appellee cannot recover." The churn room where the plaintiff worked was cold and not a suitable place for resting and lunching during the noon hour. A few months before the accident happened it had been the custom of the workmen, generally, to use the boiler room for this purpose, but the company had prepared another room on the floor above, which room was at the time of the accident more generally used by the employees. The closets for the use of the men, however, were in the boiler room, and these were being used generally at the time of the accident. The men were supposed to go into the boiler room to use these closets, and the plaintiff was not a mere license in so doing. The engineer testified that the men were not expected to remain in the boiler room during the noon hour, and that he had so instructed the plaintiff, and had frequently directed him not to remain in the boiler room for eating his lunch. The defendant's foreman testified that he had never given the men such orders, and the plaintiff positively denied that he had ever received any such directions. Under this conflicting evidence, the jury might have found that the plaintiff was not violating any rules of the company in remaining in the boiler room during the lunch hour, and that he was not a mere licensee therein.
2. The allegation of the plaintiff that the fireman, Reisberg, knew that the plaintiff was in the trap room at the time that the accident occurred is not supported by the evidence. The fireman testified positively that he had no such knowledge or notice, and there appears to be no direct evidence that he did. The fireman, however, was bound to know, and the evidence indicates that he did know, that the closets in the boiler room were designed for the use of the men and that they were so used, and that it was reasonable to expect that the men might probably be in the boiler room at any time. It is not therefore necessary that he should know at that particular time that this plaintiff might be exposed to danger by his carelessness.
3. The principal question in this case is whether there is sufficient evidence from which the jury might find negligence on the part of the fireman,...
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