New Omaha Thomson-Houston Electric Light Company v. Rombold

• Decision Date: 20 December 1905
• Parties: NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY v. JOHNERSON C. ROMBOLD
• Court: Nebraska Supreme Court

106 N.W. 213

73 Neb. 272

NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY v. JOHNERSON C. ROMBOLD

Supreme Court of Nebraska

December 20, 1905

REHEARING DENIED.

OPINION

HOLCOMB, C. J.

This cause is now pending on its second appearance in this court. The error proceedings first taken to have reviewed the record and judgment obtained in the court below resulted in a reversal of the judgment and a remanding of the cause for further proceeding. New Omaha Thomson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 68 Neb. 71. The plaintiff on the second trial in the court below again obtained judgment, and defendant brings error. In an opinion prepared by the commissioners, which was adopted by the court, it was found that no prejudicial error had been committed and the judgment last obtained was accordingly affirmed. New Omaha Thomson-Houston Electric Light Co. v Rombold, ante, p. 259. An application for a rehearing has been made and it is complained that the rule of the "law of the case" was erroneously applied in the last opinion, thereby leaving unconsidered and undetermined vital questions presented by the issues and the evidence at the last trial. The plaintiff, a lineman in the employment of the defendant electric light company, received personal injuries while at work in the performance of his duties, and his cause of action for damages is grounded on the alleged negligence of the defendant in permitting and causing to exist on its main lines of wires two short pieces or splices of wire projecting therefrom, untaped and uninsulated, and that while engaged in his work he came in electrical contact with the exposed ends of said wires, receiving a shock which caused him to fall to the ground and to receive the injuries complained of. These splices of wire had been left in the condition they were in when the injury occurred by removing or detaching service wires used to carry electrical currents for electrical lighting or power purposes from the main or feed wires to the structures occupied by the customers of the defendant company.

One of the principal defenses of the company was and is that it owed no duty to the plaintiff in respect of the alleged negligent construction and defective condition of its wires which produced the injury, since the character and nature of the plaintiff's employment required of him the duty of inspecting the wires of its lines where he was working and of discovering defects and repairing the same or reporting such defects to the company in order that the same might by it be properly repaired and the defect cured.

As bearing on the issue of the alleged negligence of the company and its duty toward its employees in that regard, the trial court at the first hearing instructed the jury, in substance, that it was the defendant's duty to exercise ordinary and reasonable care to render it safe for the plaintiff to work on its poles and among its wires strung thereon. That if such degree of care and caution required such wires to be insulated, then it was negligence to permit such wires or parts of them to be without proper insulation and thereby subject its linemen to risk of injury. It is, in the opinion last filed on the first appeal, said that it is the undoubted general rule of law that the employer is bound to exercise reasonable care not to expose his employees to unreasonable or extraordinary danger by putting them to work in dangerous places or with dangerous tools and appliances. It is held, however, therein, under the issues in the case at bar as to negligence, that where from the nature of the work, the contract of employment, or other facts and circumstances, the duty to make inspection and discover defects devolves upon the employee, the employer is not liable for an injury resulting to such employee from a defect which the latter, by reasonable inspection, would have discovered. To the charge of negligence at the first trial the defendant answered by a general denial, thus putting in issue not only the alleged defective condition of its electric light wires, but also its alleged duty to the plaintiff to properly tape the exposed wires and thus prevent the risk of danger to which the plaintiff was exposed. As to the alleged omission of duty on the part of the defendant to keep and maintain its wires in a reasonably safe condition, the decision unmistakably establishes the proposition that that question was one of fact which, under the pleadings and the evidence as they then stood, should have been submitted to the jury for its determination. On the retrial the answer was changed so that it was specifically denied "that it was the duty of this defendant, due to plaintiff, to insulate the wires described and complained of in the petition," thereby narrowing the issue regarding the duty owing by the employer to the employee in respect of the uninsulated wires, and bringing the issue squarely within the rule announced in the opinion. The defective condition of the wires was conceded.

1. It is now contended that the undisputed evidence discloses that the defendant did not owe to the plaintiff the duty of inspecting the wires and repairing the defects complained of in order that the plaintiff might have a safe place to work at the place and under the circumstances where the accident occurred, and that the opinion last filed is erroneous in holding that the evidence was conflicting regarding the defendant's duty in that regard. If there exists a substantial conflict in the evidence as to the nature of the work, the contract of employment and other facts and circumstances connected with the plaintiff's employment, as we think does, then, under the decision on the first appeal, any course other than to have submitted such question to the jury for its determination would have been error to the prejudice of the party against whom the ruling operated.

If the evidence relating to corresponding duties and obligations of the respective parties concerning the defective condition of the wires is in the last trial instantially the same as on the first, as we think it is, then the propriety of the submission of the question to the jury for its determination as to on whom the duty rested, is foreclosed by the rule of the law of the case.

It is contended that there is no averment in the pleading of the plaintiff that the defendant had actual knowledge of the defect complained of, and that there would be no cause of action unless the defendant might by reasonable inspection have obtained such knowledge. The facts out of which the alleged negligence arises do not, as it occurs to us, bring the case within the rule nor the reason of the rule invoked by the defendant. If the defect existed as complained of, it was occasioned by the active agency of the master in the construction and operation of its electrical lighting and power system. It resulted from the negligent acts of its agents and servants in stringing its wires to be used in the prosecution of its business. There would be no difference in principle had its wires, poles or fastenings been defectively arranged or constructed in the original...