Omaha Bottling Company v. Theiler

• Decision Date: 09 November 1899
• Docket Number: 9,011
• Citation: 80 N.W. 821,59 Neb. 257
• Parties: OMAHA BOTTLING COMPANY v. MICHAEL THEILER, JR
• Court: Nebraska Supreme Court

80 N.W. 821

59 Neb. 257

OMAHA BOTTLING COMPANY v. MICHAEL THEILER, JR

No. 9,011

Supreme Court of Nebraska

November 9, 1899

ERROR from the district court of Douglas county. Tried below before SLABAUGH, J. Reversed.

REVERSED AND REMANDED.

Albert S. Ritchie, for plaintiff in error:

Plaintiff after verdict, was erroneously permitted to amend his petition in matter of substance. See Louisville, N. A. & C. R. Co. v. Renicker, 35 N. E. [Ind.], 1047; Omaha & R. V. R. Co. v. Wright, 47 Neb. 886; Dillon v Starin, 4 Neb. 881; Omaha Consolidated Vinegar Co v. Burns, 44 Neb. 21; Traver v. Shaefle, 33 Neb. 531; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90; Anderson v. Oscamp, 35 N. E. [Ind.], 707; Newman v. Perrill, 73 Ind. 153; Bigelow v. Danielsons, 78 N. W. [Wis.], 601; McCarthy v. Mulgrew, 77 N. W. [Ia.], 527; Taylor v. Johnson, 113 Ind. 164; Reed v. Browning, 130 Ind. 575; McMillen v. Terrell, 23 Ind. 163; Lee v. Smart, 45 Neb. 318; Lehman v. Van Nostrand, 42 N. E. [Mass.], 1125; Omaha S. R. Co. v. Leigh, 49 Neb. 782; Kilpatrick v. Richardson, 40 Neb. 478.

The rule that a servant assumes the risks of his employment applies to a minor, and a minor's want of knowledge of danger, when relied upon, must be alleged and proved. See Herold v. Pfister, 66 N. W. [Wis.], 355; Ciriack v. Merchants Woolen Co. 146 Mass. 182; McGinnis v. Canada Southern Bridge Co. 49 Mich. 466; DeGraff v. New York C. & H. R. R. Co. 76 N.Y. 132; Buckley v. Gutta Percha & Rubber Mfg. Co. 113 N.Y. 540; Stewart v. Patrick, 30 N. E. [Ind.], 814; Atlas Engine Works v. Randall, 100 Ind. 293; Pittsburgh, C. & S. L. R. Co. v. Adams, 105 Ind. 151; Hickey v. Taaffe, 105 N.Y. 26; Sjogren v. Hall, 53 Mich. 274; Anderson v. Morrison, 22 Minn. 274; Fones v. Phillips, 39 Ark. 17; Pratt v. Prouty, 153 Mass. 334.

Defendant exercised ordinary care in adapting the machine. It was like those generally used by others engaged in the same business, and therefore defendant is not liable in damages for plaintiff's injury. See Northern Central R. Co. v. Husson, 101 Pa. St. 1; Iron-Ship Building Works v. Nuttall, 119 Pa. St. 149; Titus v. Bradford, B. & K. R. Co. 136 Pa. St. 618; Washington & G. R. Co. v. McDade, 135 U.S. 574; "The Maharajah," 40 F. 784; Lafflin v. Buffalo & S.W. R. Co. 106 N.Y. 136; Georgia P. R. Co. v. Propst, 83 Ala. 526; Kelly v. Southern M. R. Co. 28 Minn. 99; Louisville & N. R. Co. v. Hall, 87 Ala. 722; Kolsti v. Minneapolis & S. L. R. Co. 32 Minn. 134; Michigan C. R. Co. v. Coleman, 28 Mich. 448; Daley v. Armstrong Printing Co. 152 Mass. 581; Dingley v. Star Knitting Co. 134 N.Y. 555; Goodnow v. Walpole Emery Mills, 146 Mass. 261; Bohn v. Chicago, R. I. & P. R. Co. 106 Mo. 429; Ross v. Pearson Cordage Co. 41 N. E. [Mass.], 284; Schroeder v. Michigan Car Co. 56 Mich. 132.

Failure to furnish a cover, shield or safer device is not negligence. See Mackin v. Alaska Refrigerator Co. 58 N. W. [Mich.], 999; Iron-Ship Building Works v. Nuttall, 119 Pa. St. 149; Ciriack v. Merchants Woolen Co. 146 Mass. 182; Casey v. Chicago, St. P. M. & O. R. Co. 62 N. W. [Wis.], 624; Sweeney v. Berlin & Jones Envelope Co. 101 N.Y. 520; Levy v. Bigelow, 34 N. E. [Ind.], 13; Carroll v. Williston, 44 Minn. 287; Graver v. Christian, 36 Minn. 414; Missouri P. R. Co. v. Lewis, 24 Neb. 848.

Where there is evidence tending to support the theory of a party, the case should be submitted on his theory as well as upon that of his opponent. See Shroeder v. Flint & P. M. R. Co. 61 N. W. [Mich.], 667; Wildey v. Crane, 69 Mich. 17; Miller v. Miller, 97 Mich. 151; Babbitt v. Bumpus, 73 Mich. 331.

T. J. Mahoney, contra:

There was no error in permitting the amendment. See Missouri P. R. Co. v. Baxter, 42 Neb. 793; Hedges v. Roach, 16 Neb. 676; Catron v. Shepherd, 8 Neb. 318; Evarts v. Smucker, 19 Neb. 43; Homan v. Steele, 18 Neb. 652; Brown v. Rogers, 20 Neb. 547; Roberts v. Taylor, 19 Neb. 189; McKeighan v. Hopkins, 19 Neb. 34; Carmichael v. Dolen, 25 Neb. 338; Klosterman v. Olcott, 25 Neb. 390; Anglo-American Land, Mortgage & Agency Co. v. Brohman, 33 Neb. 409; Omaha & R. V. R. Co. v. Moschel, 38 Neb. 281.

OPINION

See opinion for statement of the case.

SULLIVAN, J.

Michael Theiler, a minor, brought this action in the district court to recover damages of the Omaha Bottling Company on account of an injury to his right eye resulting from the explosion of a bottle filled with carbonated cider. The plaintiff, when injured, was in the service of the defendant, a corporation engaged in the business of manufacturing soda water, mineral waters, "patent cider," and other aerated beverages. He was about twenty years of age at the time of the accident, and had worked for the company in its bottling department during the greater portion of the five preceding years. In 1894 he had charge and supervision of the business for nearly nine months. In 1895, after being out of defendant's service for a short time, he was employed as an ordinary hand, and was injured while bottling cider charged with carbonic acid gas under a pressure of eighty pounds to the square inch. In the original petition it was alleged as negligence that the defendant had failed to provide a suitable screen for the bottles which were being filled at the time of the explosion. After the verdict was returned the following amendment was added by leave of court "That at said time plaintiff was inexperienced in the work of bottling said drink, and was uninstructed therein; that he was at said time using the appliances furnished by defendant in obedience to the requirements of defendant, and did not know, or have means of knowledge, of any danger in using said appliances, but believed the same reasonably safe, though as a matter of fact they were not, as defendant well knew." The action of the court in admitting this amendment by the postern gate was unwarranted and can not be sustained. The case was submitted to the jury on the theory that the failure of the defendant to furnish the plaintiff with a proper screen for the cider bottles might, under the circumstances disclosed at the trial, constitute actionable negligence. The jury were, in substance, instructed that, unless contributory negligence was shown, they might find for the plaintiff, if the alleged negligence was established by a preponderance of the evidence. Was this instruction correct when considered with reference to the negligence charged in the amendment? Clearly not. The evidence bearing upon the question of contributory negligence was relevant, of course, to the matters stated in the amendment, and must have been considered by the jury in reaching their verdict; but the right to recover was not made to depend upon preponderant proof of any such matters. To make the amended petition the basis of the verdict would be to permit a recovery under instructions declaring, in effect, that all the essential facts of plaintiff's case need not be proved by the greater weight of the evidence. The general rule is that infants, like adults, assume the ordinary risks of the service in which they engage. They are entitled, however, to warning of dangers which, on account of their youth and inexperience, they do not fully comprehend; and if such warning be not given, or if it be inadequate, the master is in fault and must answer for the consequence. But whether the plaintiff in this case, by reason of his youth or lack of experience, was ignorant of the danger to which he was exposed--whether the liability of cider bottles to explode under high pressure was as to him a secret and hidden peril--was for the jury to determine from the evidence, and, in accordance with the general rule, the burden of proving the fact was upon the party asserting it. See Sullivan v. India Mfg. Co. 113 Mass. 396; Chicago Anderson P. B. Co. v. Reinneiger, 140 Ill. 334, 29 N.E. 1106. The court, therefore, was not within the limits of judicial discretion in permitting the petition to be amended, and its order in the premises, being prejudicial to defendant's rights, is sufficient to require a reversal of the judgment.

Having shown that the verdict can not properly rest on the facts introduced into the petition after the trial, we will now inquire whether the material averments of the original pleading are supported by adequate proof. The evidence shows conclusively that screens for cider bottles were not in general use in factories like that of the defendant; that such bottles were expected to stand a pressure of 100 pounds, and were considered entirely safe at a pressure not exceeding seventy-five pounds. The regular course of the business was to do the work with pressure ranging from forty to sixty pounds. The accident resulting in plaintiff's injury occurred when the gauge indicated a pressure of eighty pounds. This was an extraordinary condition. It was a condition which does not seem to have been anticipated, and one which would not have existed but for the negligence of the person whose duty it was to regulate the pressure. It would seem, therefore, that the proximate cause of...