Norfolk Beet-Sugar Company v. Hight

• Decision Date: 05 October 1898
• Docket Number: 8108
• Parties: NORFOLK BEET-SUGAR COMPANY v. THOMAS G. HIGHT
• Court: Nebraska Supreme Court

76 N.W. 566

56 Neb. 162

NORFOLK BEET-SUGAR COMPANY v. THOMAS G. HIGHT

No. 8108

Supreme Court of Nebraska

October 5, 1898

ERROR from the district court of Madison county. Tried below before ROBINSON, J. Reversed.

REVERSED AND REMANDED.

Robertson & Wigton, for plaintiff in error.

Brome Burnett & Jones and Mapes & Hazen, contra.

OPINION

HARRISON, C. J.

The defendant in error instituted this action against the plaintiff in error, hereinafter designated the company, to recover an amount alleged to be his damages from injuries sustained while in the employ of the company, by reason of its negligence. A verdict in favor of the defendant in error was returned in the district court, and judgment rendered thereon, and the company has removed the cause to this court for review of the proceedings in the trial court.

At the commencement of the trial there was interposed for the company an objection to the introduction of any evidence. The ground of the objection was that the petition did not state a cause of action. The objection was overruled, and such action is of the alleged errors presented in argument here. So much of the petition as we need notice in the discussion of this point was as follows:

"1. That said defendant is and at all the times hereinafter mentioned has been a corporation engaged in the manufacturing of sugar from beets at Norfolk, Nebraska and operating at said town of Norfolk a beet-sugar factory for such purpose.

"2. On the 2d day of November, 1894, plaintiff, who then was a strong, able-bodied, healthy man, thirty years of age, was and for two weeks prior to said date had been employed by said defendant in and about its beet-sugar factory at Norfolk, as a common laborer.

"3. On said 2d day of November, 1894, and at the time of the happening of the injuries and wrongs hereinafter complained of, plaintiff was employed as a common laborer, as aforesaid, for defendant, in a room in its factory under the room commonly known and designated as the "Filter-Press Room," under the immediate charge and supervision of an agent, servant, and foreman of defendant by the name of Brugeman, the first name of said Brugeman plaintiff does not know, and therefore cannot state; but plaintiff avers in that behalf that on said date said Brugeman was the authorized agent, superintendent, and foreman of defendant in that portion of defendant's work in which plaintiff was employed, and that it was plaintiff's duty to receive orders respecting his work from said Brugeman and obey the same.

"4. At the time of the happening of the injuries hereinafter complained of there was in use and operation by defendant in said room where plaintiff was employed as hereinbefore recited, a wide belt, said belt being a part of the appliances used to propel certain machinery in and about the operation of defendant's work, said belt passing over and around an iron wheel connected with an iron shaft in the operation of a portion of defendant's machinery in said room. At the time of the happening of the injury, hereinafter complained of, said machinery was in motion, propelled by steam power, and said belt was running very rapidly. At said date, and while said machinery and belt were running very rapidly as hereinbefore recited, there having accumulated upon said belt a quantity of water, and defendant's said foreman, Brugeman, desiring to procure said water to be removed from said belt, carelessly and negligently ordered and directed this plaintiff to procure a gunny sack and wipe the water from said belt, at a point thereon underneath the portion of said belt passing over said wheel. That plaintiff had no experience in the use and operation of machinery of that character, and did not know that it was dangerous and unsafe to obey the order of said foreman, and in the manner directed attempted to wipe the accumulation of water from underneath said belt. That in truth and in fact it was very dangerous and unsafe to obey said order, and attempt, in the manner directed, to remove said water from said belt; that defendant and its agent and foreman, the said Brugeman, were well advised, did know, and ought to have known, that the service plaintiff was so directed to perform was very dangerous and unsafe; that in pursuance of said order and direction of said foreman, and without any knowledge of the dangerous and unsafe character of the service he was directed to perform, and without having had any experience, or opportunity to acquire such knowledge, plaintiff did procure a gunny sack, and in strict and literal compliance with said order of said foreman, and in the immediate presence and at the specific direction of said foreman, plaintiff undertook to perform said service and remove the water from said belt; that although plaintiff used the utmost care and caution in and about the attempt to perform such service, immediately upon said gunny sack coming in contact with said rapidly running belt, and without fault or negligence on the part of plaintiff in any manner whatever, said gunny sack, and plaintiff's hand and right arm in contact therewith, were drawn by said belt over said wheel and around said shaft, and plaintiff's arm, and the bones thereof, crushed, bruised, broken, and mangled; that this defendant's foreman well knew of the fact that plaintiff was ignorant of the danger attached to the performance of said service, and well knew that plaintiff had had no experience in and about the operation of machinery of that character, or opportunity of acquiring knowledge of the danger of said service, and knew, and ought to have known, that the performance of said service was very dangerous and unsafe, and carelessly and negligently ordered plaintiff to perform said service and carelessly and negligently failed to advise plaintiff of the dangerous and unsafe character of said service at and prior to the time plaintiff undertook to perform the same."

In the solution of a question raised by a general demurrer to a petition made at the time of trial, and such was the effect of the action we have described in this case there is to be applied the rule that the allegations of the petition shall be liberally construed and, if possible, the pleading sustained. (Roberts v. Taylor, 19 Neb. 184, 27 N.W 87.) In the decision of the case of Jones v. Florence Mining Co., 66 Wis. 268, 28 N.W. 207, the supreme court of Wisconsin announced the following rule, the principle of which we think applicable herein, and approve: The duty devolved upon the master, employing in a dangerous occupation a servant, who, from youth, inexperience, ignorance, or want of general knowledge, may fail to appreciate the danger, to first instruct the servant, and warn him, so that he may comprehend the danger, and do the work safely with proper care on his part; and this, even though the servant consented to be employed in the dangerous situation. In the body of the opinion it is said, and citations made in support of the statement, that: "We think it is now clearly settled that if a master employs a servant to do work in a dangerous place, or where. the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the...