New Omaha Thomson-Hous. Elec. Light Co. v. Rombold
| Decision Date | 09 February 1905 |
| Citation | 73 Neb. 259,102 N.W. 475 |
| Parties | NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT CO. v. ROMBOLD. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Held, that all questions involved in this controversy which were examined and determined in the former opinion in this case, reported in 93 N. W. 966, except the question considered in our second opinion in the same case (97 N. W. 1030), are governed by the “rule of the law of the case,” and should not be re-examined unless clearly erroneous.
2. Action of the trial court in the admission of evidence examined, and held not prejudicial.
3. Instructions examined, and held to have fairly covered every question at issue in the controversy.
Commissioners' Opinion. Error to District Court, Douglas County; Estelle, Judge.
Action by Johnerson C. Rombold against the New Omaha Thomson-Houston Electric Light Company. Judgment for plaintiff, and defendant brings error. Affirmed.W. W. Morsman and Greene, Breckenridge & Kinsler, for plaintiff in error.
Crane & Boucher and T. J. Mahoney, for defendant in error.
On the 12th day of June, 1899, Johnerson C. Rombold, plaintiff in the court below, filed his petition in the district court of Douglas county against the defendant electric light company, alleging, in substance, that on March 22, 1898, he entered the employ of the defendant company as a lineman in the city of Omaha--it being his duty, under the direction of the defendant, to erect poles and string wires in the streets of said city--and he continued in such employ up to and including a part of July 1, 1898, or a period of a little more than three months. He further alleged that at about 5 o'clock p. m. on said July 1st he and his fellow workmen were engaged in stringing wires on poles and cross-arms at Jones street, between Fourth and Fifth streets, in said city; that in the course of his employment he was directed by defendant to climb a certain pole to a height of about 45 feet, and string a wire upon the top cross-arm; that on this pole there were 8 cross-arms, about 20 inches apart, and on each cross-arm from 4 to 6 electric and telephone wires, 16 inches apart, about 28 of the wires being insulated electric light wires; that, on the second cross-arm from the top, the first and second wires on the north side of the pole were insulated, and carried a heavy current of electricity; that each of these wires was spliced at a point about 2 feet west of the cross-arms, the insulation being removed and the wires twisted together, the bare ends of the wires being allowed to extend out about an inch from the main wire; that the splices were negligently made, in that there was a failure to cover them with insulating material or “taping” to protect employés and others from coming in contact with such exposed wires; that plaintiff climbed up this pole on the east side of the cross-arm, strung the wire at the north end of the top cross-arm, and descended to the west side of the cross-arms between the first and second wires; that, when his feet were on the fourth cross-arm from the top, his right arm came in contact with the uncovered wire extending from the splices next to the pole, and at the same time his back came in contact with the uncovered wire extending out from the splices on the second wire from the pole; that he thereby became “short-circuited,” receiving an electric shock which rendered him unconscious, causing him to fall to the ground, breaking both feet and right ankle, and necessitating the amputation of his right foot. Because of these injuries, he prayed a judgment for $25,000.
The defendant, for its amended answer, at the last trial of the cause in the court below, denied specifically that it was its duty to insulate the wire complained of in the petition. Defendant also specifically alleged that the defects complained of were open and obvious, and that the plaintiff assumed the risk, by virtue of his employment, of injuries from contact with them; that the defects could have been seen by plaintiff by the exercise of ordinary care; and that he was guilty of contributory negligence in failing to avoid them. The answer also alleged that on the 12th day of October, 1898, the plaintiff signed a release, and received from defendant $325 in full satisfaction and discharge of the claim set forth in the petition. The release pleaded in the answer was as follows:
“Received of New Omaha Thomson-Houston Electric Light Co. this 12th 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 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.
Address, Omaha, Neb.”
The plaintiff replied denying the allegations of the amended answer, except as alleged in the petition, and alleged that he was induced to sign the release by fraud practiced upon him by the misrepresentations of W. F. White, superintendent of the defendant electric light company, and by the pretended receipt being misread to him by George A. Gilbert, superintendent of the Employers' Liability Assurance Company, as though it were but a receipt to an insurance company for his hospital expenses and medical attendance. He denies that any mention was made to him of any settlement with the electric light company for his injuries, but says that Supt. White represented to him that, as soon as he had recovered sufficiently, the electric light company would give him $500, and restore him to a good position in their employ, and that plaintiff was not in a fit mental or physical condition to enter into a contract when the alleged receipt was signed.
We have thus stated the issues somewhat at length, although this case is now before this court a third time for review, and although at its first hearing the issues then arising between these parties were very carefully and succinctly stated in an able and well-considered opinion by Hastings, C., reported in 93 N. W. 966. This opinion affirmed the judgment of the district court in favor of plaintiff for $15,000 damages, but on a rehearing a second opinion was written by Albert, C., officially reported in 97 N. W. 1030, reversing the judgment for a single error--that of the trial court in giving the eighth paragraph of the instructions--and reaffirming and approving all other conclusions reached by Commissioner Hastings. When the cause was remanded to the district court in conformity with this latter opinion, on a second trial to a jury in the district court plaintiff was awarded a judgment of $11,400, and to reverse this judgment the defendant electric light company again brings error to this court.
At the outset of this discussion we are confronted with a contest between the able counsel for plaintiff and defendant as to what, if any, questions now involved in this controversy have been passed upon by this court in our former opinions, so as to be governed by the “rule of the law of the case.” It is contended by counsel for the electric light company, because the opinion by Albert, C., set aside the former judgment of this court, and remanded the cause for a new trial in the court below, no question now involved in the controversy can or should be controlled by the law of the case, while, on the other hand, it is contended by counsel for Rombold that every question determined in the first opinion by Hastings, C., is specifically reaffirmed in the subsequent opinion, with the exception of the action of the trial court in giving the eighth paragraph of instructions, and that each of these several questions so passed upon in our first opinion is within the rule, and should not again be examined, unless clearly wrong. Defendant company urged in support of its contention that the issues were changed by the filing of an amended answer at the last trial, and by procuring additional testimony--particularly that of one Holdredge, its present general manager. An examination of the issues existing at the time of our former opinions shows that, so far as the petition and reply of the plaintiff, Rombold, is concerned, there has been no change whatever in the substance of the issues; that, at the time of the first trial of the cause, defendant, by its answer, put in issue each of the defenses now relied upon, and, in addition to this, it put in issue the truth of the allegation of plaintiff's petition as to the existence of the untaped splices on the wires, which were alleged to have been the cause of the injury. The electric light company, in its brief, says that at the time of the first trial of the cause it did not believe that such untaped splices were upon the wires, but that after the trial it became convinced of the truth of this allegation, and for that reason filed an amended answer conceding their existence. Now, the only manner in which the amended answer changed the issues, so far as the fact of the existence of the untaped splices, and the manner in which the plaintiff, Rombold, was injured, was to admit these allegations, which were formerly denied. The company, in its amended answer, did plead with much more particularity and precision its defense of the assumption of the risk by plaintiff, Rombold, by reason of his employment, and also of the defense that the defect was open and obvious; but each of these defenses had been offered at the first trial, and they were treated both by the trial court and by this court as having been sufficiently pleaded. The issue of settlement was pleaded at the first trial, and the evidence touching this issue, and the fraud alleged to have been perpetrated upon Rombold in procuring his signature to the receipt, is substantially the same as formerly pleaded, and passed upon by Commissioner Hastings in our...
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