Oberfelder v. Doran

• Citation: 41 N.W. 1094,26 Neb. 118
• Parties: OBERFELDER ET AL. v. DORAN.
• Decision Date: 27 March 1889
• Court: Nebraska Supreme Court

26 Neb. 118

41 N.W. 1094

OBERFELDER ET AL.

v.DORAN.

Supreme Court of Nebraska.

March 27, 1889.

Syllabus by the Court.

I. and S. O. were the lessees of a large double store building, in which they carried on a wholesale millinery business. To this store building was attached, and used by I. and S. O., their employes and customers, in ascending to the second, third, and fourth stories of said building, also in descending to and ascending from the basement thereof, and was also used by said I. and S. O. and their employes in carrying goods into and from the different stories of said building, and empty boxes and other litter from the same, an hydraulic passenger and freight elevator. The beams upon which rested the axles or journals of the main wheel or pulley over which ran the cable which sustained the traveler or carriage of said elevator were composed of pine lumber which at the date of the cause of action hereinafter mentioned, by reason of dry rot, in connection with the numerous knots therein, had become and was unsuitable, improper, and unfit for such use. B. D., husband and testator of J. D., was in the employment of I. and S. O., either as their servant or casually employed express-man, and as such was lawfully upon the traveler or carriage of said elevator, when, by reason of the weak, knotted, and rotten condition of said beams, they split, broke, and fell, precipitating said B. D. to the bottom of the basement of said building, and bringing down upon him the said main wheel or pulley, breaking his legs, and inflicting other injuries upon him by reason of which he soon afterwards died. A verdict and judgment for the plaintiff sustained.

Error to district court, Douglas county; HOPEWELL, Judge.

Action by Julia Doran against Isaac Oberfelder and Simon Oberfelder, for damages for the death of plaintiff's husband. Judgment for plaintiff, and defendants bring error.Lake & Hamilton, for plaintiffs in error.

J. C. Cowin and J. T. Moriarty, for defendant in error.

COBB, J.

This case is brought to this court on error from the district court of Douglas county. The defendant in error filed her amended petition in the court below against the plaintiffs in error on January 2, 1888, alleging that on March 25, 1887, her husband, Bernard Doran, died, leaving a will appointing her sole executrix thereof, which will was duly proven, admitted to record, and that letters testamentary were issued to her, thereon; that she is the mother of Emmett N., aged eight years, Patrick J., aged five years, Martha E., aged three years, and Bernard M., aged two months, children of her said husband, deceased, upon whom she and her said children were wholly dependent for support, and in behalf of whom, as heirs at law and next of kin, she brings this suit. That on March 8, 1887, and for a long time prior thereto, the defendants were lessees of a four-story brick building, Nos. 1213 and 1215 Harney street, in Omaha, in said county, and had control and management of the same, and of the elevator used and operated therein in conducting their business of wholesale milliners and dealers in notions; that said elevator was attached to one end of a cable which passed over a large iron wheel, and was operated by machinery with which the other end of the cable was connected; that said wheel weighed about 1,600 pounds, and was supported by wooden beams, crossing diagonally from one side to the other of the shaft of the elevator, at a distance of about 75 feet above the cellar floor of the building; that it was the duty of the defendants to see that said wooden beams were composed of sound material, kept in good repair, and were of sufficient strength for the purpose for which they were used; but that said wooden beams consisted of four weak, decayed, and rotten pine boards, each of which was filled with from 10 to 15 knots, and all fastened together with nails and bolts. That the defendants carelessly and negligently permitted said beams to get out of repair by becoming decayed, rotten, and weak, and were of inadequate strength, and wholly unfit for the purpose for which they were used, of all of which defects the defendants were at all times informed and had full knowledge, but of which the said Bernard Doran had no knowledge whatever; that on the 8th day of March, 1887, said Doran was, and for a long time prior thereto had been, in the employ of said defendants, and while so employed it was his duty to remove store boxes and other material to and from the cellar floor and the several floors of the building upon and by means of the said elevator. And while the said Doran was so engaged at said work on said day in the discharge of his duty, the said wooden beams, by reason of their condition and inadequate strength, and general unsuitableness to the purpose used, gave way, and broke into two pieces, each at the point where the axle of the wheel rested upon them, thereby causing the wheel to fall and be precipitated with force and violence down into the cellar floor of the building, falling upon and striking both legs of said Doran, breaking and crushing the bones, and bruising, tearing, and mangling the flesh thereof, by reason of which it became necessary to amputate both of his legs,--one above the knee, and the other immediately below it,--which was done on said last-mentioned day. After receiving said injuries, and incurring expenses for surgical aid and nursing to the amount of $200 therefor, and experiencing pain and suffering until the 25th day of March, 1887, said Doran died by reason of said injuries through the carelessness and negligence of said defendants, by reason of which the plaintiff and her said children have sustained damages to the sum of $5,000, for which she prays judgment.

The answer of the defendants admitted the premises so far as the occupation of the building for the purposes alleged by the plaintiff, and that “there was an elevator in the building, used for lowering and elevating persons, store boxes, merchandise, and other material to and from the cellar floors thereof;” but specially denied any negligence or carelessness charged against them; and further admitted that said Doran received some injury at the time and place alleged, and died leaving a widow and four children, as alleged, but denies generally all other allegations of the petition. There was a trial to a jury with a verdict for the plaintiff, and judgment thereon. The defendants' motion for a new trial having been overruled, the cause is brought to this court on the following assignments of error: (1) In refusing to give instructions to the jury, numbered 1, 2, and 6, requested by the defendants. (2) In giving instructions numbered 1, 3, 5, and 6, requested by the plaintiff. (3) In holding that the verdict was supported by sufficient evidence.

The instructions offered by defendants, and refused by the court, are: “(1) The jury are instructed that the defendants had the right to assume that the elevator in question, when they took the lease from Smith, and entered upon their occupancy of the premises, had been constructed of sound material, and in a workman-like manner, and, even if the jury find from evidence that the injury complained of was caused by the use of decayed or defective timber in the construction of the elevator, of which the defendants had no knowledge until after the injury, they are not liable in this action. (2) The jury are further instructed that the defendants had the right to infer when they entered upon, and during their occupancy of, the building in question that the elevator therein, and its supporting timbers, were of suitable dimensions, and sound, and the fact that they did not examine the timbers, which finally broke, to ascertain their condition in these respects, nor call upon a mechanic or expert to do so, is not evidence of neglect or default on their part.” “(6) And even although the jury may believe that an extraordinarily prudent or careful person, under the circumstances surrounding the defendants in their leasing and occupying the premises in question, might or would have made, or have had made by a carpenter or expert, an examination...