Norfolk Beet-Sugar Company v. Hight

• Decision Date: 05 October 1899
• Docket Number: 10,780
• Citation: 80 N.W. 276,59 Neb. 100
• Parties: NORFOLK BEET-SUGAR COMPANY v. THOMAS G. HIGHT
• Court: Nebraska Supreme Court

80 N.W. 276

59 Neb. 100

NORFOLK BEET-SUGAR COMPANY v. THOMAS G. HIGHT

No. 10,780

Supreme Court of Nebraska

October 5, 1899

ERROR from the district court of Madison county. Tried below before ALLEN, J. Affirmed.

AFFIRMED.

Robertson & Wigton, for plaintiff in error:

The amendment to the petition introduced a new cause of action against which the plea of the statute of limitations should have been sustained. See Union P. R. Co. v. Wyler, 15 S.Ct. 877; Denman v. Chicago, B. & Q. R. Co. 52 Neb. 140; Mayo v. Spartanburg, U. & C. R. Co. 21 S E. [S. Car.], 10; Chicago, B. & Q. R. Co. v. Jones, 37 N. E. [Ill.], 247; American Salt Co. v Heidenheimer, 15 S.W. [Tex.], 1038; Anniston & A. R. Co. v. Ledbetter, 9 So. [Ala.], 73; Smith v. Missouri P. R. Co. 50 F. 760; Fish v. Farwell, 43 N. E. [Ill.], 367; Gulf, C. & S. F. R. Co. v. Thompson, 16 S.W. [Tex.], 174; Morales v. Fisk, 18 S.W. [Tex.], 495; Nugent v. Adsit, 53 N. W. [Mich.], 620; Wigton v. Smith, 57 Neb. 299.

The law imposes the same obligation upon the servant to avoid apparent dangers while doing work without the scope of his employment as it does if the work is within the scope of his employment, and the servant assumes the risks incident to the performance of the work. See Leary v. Boston & A. R. Co. 139 Mass. 580; Cole v. Chicago & N. R. Co. 71 Wis. 114; Wheeler v. Berry, 95 Mich. 250; Prentiss v. Kent Furniture Mfg. Co. 63 Mich. 478; Wormell v. Maine C. R. Co. 79 Me. 397; Fort Smith Oil Co. v. Slover, 58 Ark. 168; Paule v. Florence Mining Co. 80 Wis. 350; Hogan v. Northern P. R. Co. 53 F. 519.

Brome & Burnett and Mapes & Hazen, contra:

The cause of action stated in the amended petition is the same as that upon which the action was originally based. The amendment consists merely of the statement of other and additional facts relevant to the cause of action originally set forth, and the action is not barred by the statute of limitations. The original petition stated a cause of action. See Norfolk Beet-Sugar Co. v. Hight, 56 Neb. 162; McKeighan v. Hopkins, 19 Neb. 34; Merrill v. Wright, 54 Neb. 517; Sanger v. City of Newton, 134 Mass. 308; Smith v. Missouri P. R. Co. 5 C. C. A. [U. S.], 557; Kuhns v. Wisconsin, I. & N. R. Co. 76 Ia. 67; Buel v. St. Louis Transfer Co. 45 Mo. 562; Lottman v. Barnett, 62 Mo. 159; Gourley v. St. Louis & S. F. R. Co. 35 Mo.App. 87; Eylton Land Co. v. Mingea, 7 So. [Ala.], 666; Scovill v. Glasner, 79 Mo. 449; North Chicago Rolling Mill Co. v. Monka, 107 Ill. 340; Sherman Oil & Cotton Co. v. Stewart, 42 S.W. [Tex.], 241; Craven v. Walker, 29 S. E. [Ga.], 152; Schneider-Davis Co. v. Brown, 46 S.W. [Tex.], 108; Ruberg v. Brown, 27 S. E. [S. Car.], 873; Elting v. Dayton, 67 Hun [N.Y.], 425; People v. Cook, 62 Hun [N.Y.], 304; Dana v. McClure, 39 Vt. 197; Rand v. Webber, 64 Me. 191; Verdery v. Barrett, 89 Ga. 349; Kansas P. R. Co. v. Runkel, 17 Kan. 145; Cross v. Evans, 29 C. C. A. [U. S.], 529; Chicago & N. W. R. Co. v. Gillison, 50 N. E. [Ill.], 657; Middlesex Banking Co. v. Smith, 27 C. C. A. [U. S.], 485; Triplett v. Morris, 44 S.W. [Tex.], 684.

OPINION

See opinion for statement of the case.

SULLIVAN, J.

The plaintiff, Thomas G. Hight, recovered a judgment against the Norfolk Beet-Sugar Company on account of personal injuries which he sustained while engaged in the service of the defendant. The original petition alleged that the plaintiff was employed by the defendant in its sugar factory as a common laborer; that in the room where he was at work there was a rapidly moving belt used to propel certain machinery that defendant's foreman negligently ordered plaintiff to take a gunny-sack and wipe from such belt some water which had accumulated thereon; that plaintiff had no experience in the use and operation of such machinery, and was ignorant of the peril involved in yielding obedience to the foreman's direction; that he proceeded, in the manner indicated by the foreman, to wipe the water from the belt, and while so doing, his hand, coming in contact with the belt, was drawn over the wheel on which the belt was running, and was crushed and mangled. To this petition a demurrer was sustained on the theory, no doubt, that the plaintiff was injured while engaged in the work for which he was employed, and that the accident in question was within the risks impliedly assumed. Afterwards the pleading was amended by adding thereto an allegation to the effect that the plaintiff's duty to his employer was simply to sweep the floor of the room in which he was injured, and that the wiping of belts was not within the scope of his employment. It is now insisted by the defendant that this amendment introduced into the case a new cause of action and one which was, at the time, barred by the statute of limitations. This view of the matter was not accepted by the trial court and it does not commend itself to us. The gravamen of the action alleged in the original, as well as in the amended, petition was the wrongful act of defendant's foreman in requiring plaintiff to perform a dangerous service without informing him of the danger. In both pleadings the same negligent act is assigned as the basis for a recovery. The amendment is a mere amplification of the original statement. It charges no additional wrongful act, but merely states another fact to sustain the charge already made. In support of our conclusion that the cause of action stated in the amended petition was not barred by the statute of limitations we refer to McKeighan v. Hopkins, 19 Neb. 33, 26 N.W. 614; Merrill v. Wright, 54 Neb. 517, 74 N.W. 955; North Chicago R. M. Co. v. Monka, 107 Ill. 340; Kuhns v. Wisconsin, I. & N. R. Co. 76 Iowa 67, 40 N.W. 92; Scovill v. Glasner, 79 Mo. 449; Smith v. Missouri P. R. Co. 5 C.C.A. [U.S.] 557.

The jury, in addition to their general verdict, found specially that the plaintiff was injured while performing work outside of his regular employment, and not embraced in the contract of hiring. This finding, counsel for defendant insist, is not sustained by sufficient evidence. We think it is. Hight's testimony tended to show that he was engaged by the company's foreman for a particular purpose, viz. to sweep and keep clean the floor of the "filter-press room," and that the handling and care of the running belts, or any work of that character, was not contemplated by either party as being within the scope of the employment. Whether the work in which plaintiff was engaged at the time of the accident was outside of his duties and different in character from that which he had undertaken to perform, depending, as it does, upon the contract, was properly left to the jury to decide. They have decided it upon conflicting evidence. Their conclusion has been approved by the trial court; and we see no reason why we should not accept it as conclusive.

The court in the tenth paragraph of the charge to the jury said "A servant assumes the risks arising from the manner in which the business of the master in which he is engaged is conducted, when they are known to him, or are apparent and obvious to persons of his experience and understanding if he voluntarily enter into the employment or continue in it without complaint or objection to the hazards, and he cannot recover for injuries thus sustained. If however the servant is suddenly called on by the master...