New Omaha Thompson-Houston Electric Light Company v. Rombold

• Decision Date: 04 March 1903
• Docket Number: 12,306
• Citation: 93 N.W. 966,68 Neb. 54
• Parties: NEW OMAHA THOMPSON-HOUSTON ELECTRIC LIGHT COMPANY v. JOHNERSON C. ROMBOLD. [*]
• Court: Nebraska Supreme Court

93 N.W. 966

68 Neb. 54

NEW OMAHA THOMPSON-HOUSTON ELECTRIC LIGHT COMPANY v. JOHNERSON C. ROMBOLD. ^[*]

No. 12,306

Supreme Court of Nebraska

March 4, 1903

ERROR to the district court for Douglas county: WILLIAM W. KEYSOR DISTRICT JUDGE. Affirmed.

Affirmed.

Charles J. Greene, Ralph W. Breckenridge, James C. Kinsler and W. W Morsman, for plaintiff in error.

Timothy J. Mahoney, J. J. Boucher, Herbert M. Crane, Thomas D. Crane and O. S. Erwin, contra.

HASTINGS C. KIRKPATRICK and LOBINGIER, CC., concur.

OPINION

HASTINGS, C.

June 12, 1899, plaintiff below, Rombold, commenced his action against the New Omaha Thompson-Houston Electric Light Company to recover alleged damages in the sum of $ 25,000 for an injury received by him in defendant's service, as he alleged, in the following manner: That March 22, 1898, he entered the company's employ as lineman, it being his duty under defendant's direction to erect poles, place cross-bars on them, and string wires in the streets of Omaha wherever and whenever defendant directed; that he continued in the company's employ up to July 1, 1898, and on that day was stringing wires on poles and cross-bars at Jones street, between Fourth and Fifth; that he was directed to climb to the top of the pole, about 45 feet, for the purpose of stringing a wire upon the top cross-arm; that there were eight cross-arms about twenty inches apart attached to the pole, and on each arm electric and telephone wires to the number of from four to six, the wires being about sixteen inches apart; that there were twenty-six electric wires covered with insulating material; that on the second cross-arm from the top were two wires fourteen inches apart, known as No. 4, which were insulated, and charged with a heavy current of electricity; that these wires were spliced at a distance of about two feet west from the cross-arm, and so negligently that the ends of said wires extended out at right angles to a distance of one inch and beyond the insulation; that it was defendant's duty to cover all splices with tape, prepared for that purpose, to protect employees from contact with any wires not insulated and from receiving injuries in that manner; that these splices were not taped, and remained without any covering whatever; that plaintiff went up on the east side of the cross-arms and to the north of the pole between these two wires, completed the stringing of the wire, started to descend on the west side of said cross-arm, between the same wires, until he came to a point between the said splices, and there, without any fault on plaintiff's part, his right arm came in contact with the uncovered splice of the wire next to the pole, and at the same instant the back of his left shoulder came in contact with the uncovered splice on the second wire; that this permitted a "short circuit" between the wires through the body of the plaintiff as a conductor, and gave plaintiff an electric shock which overpowered him, caused him to lose his hold, and threw him to the ground, breaking his left foot and right ankle; that as a result of the injury it became necessary to amputate his right foot, on May 25, 1899; that he was permanently injured and rendered wholly unable to perform any labor, and suffered great pain, to his damage in the sum of $ 25,000, and that he expended for medicine, care and hospital services $ 600.

The answer admits defendant is a corporation lighting the streets of Omaha by electricity, and maintaining a plant for that purpose; admits the employment of the plaintiff up to July 1, 1898, as alleged, and denies plaintiff's remaining allegations. The answer also alleges that plaintiff's employment required him to go among defendant's "live wires"; that his work required great care and attention on account of dangerous electricity, as plaintiff well knew, and that while so employed he received an electric shock which caused him to fall a considerable distance to the ground; but says that it was not negligent toward the plaintiff, and that his fall and any other injury were occasioned entirely by the careless and negligent manner in which he performed his work under conditions all of which he well knew.

The answer also alleges that on October 12, 1898, plaintiff demanded reimbursement for his damage; that defendant, while denying liability, paid him $ 325, and received from him a release in full in the following terms:

"Received of New Omaha Thompson-Houston Electric Light Co. this twelfth day of October, 1898, the sum of three hundred and twenty-five dollars, in full satisfaction and discharge of all claims accrued or to accrue in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the first day of July, 1898, while in the employment of the above.

"325.00. J. C. ROMBOLD.

"Witness: W. F. WHITE.

"Address, Omaha, Neb."

And the answer alleged that this release was intended to and did cover all the plaintiff's claim in this action.

The plaintiff's reply denied all this answer except so far as it admitted matter in his petition; he alleged that the defendant's vice-president and general manager, White, represented to him that the defendant had a contract of insurance for the benefit of its employees; represented that the insurance company was required to and did pay for injuries received by defendant's employees, the amount of expenses incurred for medicine, doctor's service and hospital fees; stated that the $ 325 was not in payment of defendant's liability, but a payment to the employee regardless of the liability of defendant, and its receipt would be no discharge of the defendant; and stated further that such payment was simply to reimburse plaintiff for his expenses; alleged that White agreed to assist plaintiff to get a speedy and favorable settlement with the insurance company, and agreed that in addition to whatever the latter should pay, defendant would in April following pay plaintiff $ 500, and give him employment so long as he saw fit to retain it; that at defendant's instance plaintiff went up to its office to meet the representative of the insurance company and make a settlement; that an agreement was entered into whereby the insurance company was to pay plaintiff $ 325 as his expenses incurred by reason of the injuries; that the insurance company's representative paid $ 325, and that said sum was received by plaintiff on account of expenses alone; that the question of damages was not discussed during the negotiations for the receipt; that plaintiff did not read the receipt, but the insurance company's agent pretended to read it and misread it so that from the reading and the representations plaintiff understood that it was simply a receipt for his expenses and had nothing to do with any claim for damages, and in reliance upon such understanding and representations he signed the receipt; that White, in promising that defendant should pay $ 500 and employ plaintiff, acted without authority and without intention on White's part to bind defendant, and without intention that defendant should pay plaintiff any such sum, and with intention to defraud and deceive plaintiff, who believed in and relied upon the honesty and good faith of White, and believed fully all the statements made by him, and was thus induced to sign said receipt without a personal examination of it; that at the time of signing such receipt he was suffering intensely with pain and ill with fever, not in his right mind, and in no condition to know what he was doing or to make a contract, and that he never did in fact agree to any settlement of his damages.

Under these issues trial was had, and verdict returned for $ 15,000. A motion for a new trial was overruled, and from a judgment on the verdict the defendant brings error.

Two briefs have been filed on behalf of the defendant company. The first, at page four, is summarized by its writer as follows:

"1. The company did not owe to the plaintiff the duty of inspecting the wires and making repairs in order that he might have a safe place to work at the place where this accident occurred.

"2. It was the duty of the plaintiff himself to observe the condition of the wires where he was working, and avoid contact with them and his failure to do so, shown by his own testimony, defeats a recovery.

"3. The court below erred in the fifth and eighth paragraphs of the charge, and in refusing to direct the jury to render a verdict for the defendant, on defendant's motion, upon the whole of the evidence."

The other brief states the claims of defendant as follows:

"1st. Assuming that the plaintiff was injured in the manner he describes, can it be said that his injuries were caused by the failure of the defendant to perform any duty it owed him as a regular lineman engaged in its service?

"2d. Assuming, again, that at the time of the accident the condition of the No. 4 wires was the same as the plaintiff found them in October following, was not the hazard incident to their condition, the same being open and obvious to even a casual and inexperienced observer, one of the assumed risks of the plaintiff's employment?

"3d. Assuming, again, that it was the duty of the defendant to have the wires properly taped before sending the plaintiff to work near them, and that it had neglected to perform this duty, was not the danger incident thereto an open and obvious one which the plaintiff was bound to see and guard against, and his failure to do so the proximate cause of his injuries?

"4th. Is the plaintiff not bound by the terms of the settlement, evidenced by the written release, signed by him?

"5th. Are not the damages excessive?"

Plaintiff contends, on page 7 of his brief:

"1st. That the evidence...