Norfolk Beet-Sugar Company v. Koch
| Decision Date | 16 June 1897 |
| Docket Number | 7376 |
| Citation | 71 N.W. 1015,52 Neb. 197 |
| Parties | NORFOLK BEET-SUGAR COMPANY v. HERMAN KOCH |
| Court | Nebraska Supreme Court |
ERROR from the district court of Madison county. Tried below before ROBINSON, J. Reversed.
REVERSED AND REMANDED.
Powers & Hays, for plaintiff in error.
Beels & Schoregge and Koenigstein & Koenigstein, contra.
This was an action by Herman Koch, an infant, against the Norfolk Beet-Sugar Company, to recover damages for personal injuries sustained by him while in the employ of the defendant, and alleged to be due to the negligence of the defendant. The plaintiff had a judgment for $ 1,500. The defendant prosecutes error.
The evidence with regard to the manner in which the accident occurred is very meagre. The following is all that is material in the evidence on that point: Koch was sixteen years of age, had been employed in the factory the previous year, and had been employed there about a month in 1893 when, on Sunday, the 24th of September, the factory being for the most part closed for the purpose of cleaning it up, Koch was directed by the superintendent to enter a closed drain or sewer for the purpose of removing an obstruction. It seems that from certain machinery in the factory it was customary to discharge hot water and steam into this sewer. On the day in question only one machine was in operation from which such water and steam could be discharged. This was a machine styled in the evidence a "quadruple effect," and was in charge of one Peter Stirert. Prior to ordering Koch to enter the sewer the superintendent told Stirert what was about to be done, and commanded him not to let any water or steam into the sewer. When he directed Koch to enter the sewer he told him that there was no danger in doing so. Koch entered, and while he was within the sewer a volume of hot water and steam was permitted to enter and he was severely scalded. The only negligence alleged in the petition is the permitting of the water and steam to enter the sewer while Koch was there.
The court submitted to the jury certain questions for special findings. Among them were the following:
"Did the injury the plaintiff complains of result from any act of negligence of the defendant?"
A. "Yes."
Second "If the jury answers the above question in the affirmative, state what act or acts of negligence on the part of the defendant caused said injury."
A. "By permitting a volume of hot water to flow through the sewer in which the plaintiff was at work."
It is thus evident, both from the petition and from the special verdict, that the verdict was found solely because of negligence in permitting the water to enter the sewer, and not because of youth of tender years had been ordered into a place of exceptional danger. One defense was that the negligence, if any, was that of Koch's fellow servant. The only evidence as to the relations existing between these two servants is that neither occupied any position of control or direction over the other, and that they were both employed by the defendant,--Koch as a common laborer, and Stirert to operate the "quadruple effect." Whether or not their duties were of such a character as to bring them often together co-operating in any work does not appear. The court instructed the jury on the broad theory of fellow servants, as declared by Chief Justice Shaw in Farwell v. Boston & W. R. Co., 45 Mass. 49 4 Met. 49, to the effect that all persons working for the same master are fellow servants. Under the rule established in this state this instruction was prejudicially erroneous as to the plaintiff. (Union P. R. Co. v. Erickson, 41 Neb. 1, 59 N.W. 347; Omaha & R. V. R. Co. v. Krayenbuhl, 48 Neb. 553, 67 N.W. 447.) ...
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