Rasmussen v. Benson
| Decision Date | 29 October 1937 |
| Docket Number | 30073. |
| Citation | 275 N.W. 674,133 Neb. 449 |
| Parties | RASMUSSEN v. BENSON. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. " Where the instructions as a whole clearly present to the jury the issues of fact and the law applicable thereto harmless error in instructions separately criticized on appeal do not require a reversal of the judgment on the verdict." Interstate Airlines, Inc., v Arnold, 127 Neb. 665, 256 N.W. 513.
2. One handling or disposing of a substance containing poison is required to use a high degree of care to protect other persons and other property from being injured thereby.
3. Where the evidence in a case fails to disclose negligence on the part of the plaintiff, it is not error for the trial court to refuse to submit to the jury the issue of contributory negligence.
4. An action started by a decedent for pain and suffering, loss of earning, etc., may be revived by his personal representative and joined in the same proceedings in an action for the wrongful death of said deceased, for the benefit of the widow and next of kin, by pleading them separately as two causes of action.
5. Where the evidence discloses that the direct and proximate cause of the defendant's negligence resulted in death to certain live stock, and rendered other live stock useless and resulted in loss of business, and, in addition thereto, caused extreme mental shock and a physical and mental breakdown of the owner thereof, resulting in the owner's death, and where such negligence constitutes a continuous succession of events, so linked together as to make a natural whole, and no new and independent cause intervening between the defendant's negligence and the resulting damage, then, in that event, the administratrix, as plaintiff, may recover for loss of live stock, loss of business, and for pain and suffering endured by the decedent in his lifetime, when such action was started during his lifetime, and for pecuniary damages for the benefit of herself and children at his death, when properly pleaded and proved.
Appeal from District Court, Adams County; Blackledge, Judge.
Action by Alfred Rasmussen against John Benson, which, at plaintiff's death, was revived in the name of Bernice Rasmussen, as administratrix of the estate of Alfred Rasmussen, deceased. Judgment for plaintiff, and defendant appeals.
Affirmed.
Edmund Nuss and P. E. Boslaugh, both of Hastings, for appellant.
Carl T. Curtis and King & Bracken, all of Minden, for appellee.
Heard before GOSS, C. J., ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ., and CHAPPELL, District Judge.
This is an appeal from the district court for Adams county, wherein a jury returned a verdict for plaintiff below in the sum of $3,500.
Plaintiff's amended and supplemental petition alleges that defendant, at a farm sale on May 15, 1935, with the assistance of his agents and auctioneer, negligently offered for sale a part of a sack of bran as feed for live stock; that the bran had been treated for poisoning grasshoppers, and contained a poison known as arsenic; that defendant, knowing the bran contained poison, had removed the red tag which labeled the sack as poison and caused the bran to be sold as fit for consumption by live stock. Plaintiff further alleges that, relying upon the oral representations and warranties of defendant, made by him through his auctioneer, Alfred Rasmussen, a dairyman, purchased said poisonous bran, believing it to be ordinary bran, fit to feed to live stock, took the bran home and fed it to his live stock; that as a result certain of the live stock became ill and died, some cattle survived but were useless to Rasmussen in his business, and he lost his dairy business; that, by the negligent acts of defendant, Rasmussen was harrassed, excited and injured, suffered an increased heartbeat, producing the decompensation of his heart, which resulted in a complete physical and nervous breakdown in health as a direct and proximate cause resulting from the negligence of defendant; that Rasmussen became totally disabled and was confined to a hospital on two separate occasions; that previous to this time his health was good. Plaintiff also alleges pain and suffering endured by virtue of the damages, causing a severe shock to Rasmussen; and then pleads in a second cause of action the death of Rasmussen, and prays damages for the benefit of the deceased's wife and family, as provided by law. The answer pleads the defense of contributory negligence and a general denial.
The facts developed by the evidence are as follows: Alfred Rasmussen, a dairyman for ten years, 44 years of age, living near Minden, Nebraska, having a milk business of approximately 50 customers and delivering about 75 quarts of milk a day, on May 15, 1935, purchased at public auction at the farm sale of the defendant a part of a sack of bran which was not labeled, containing arsenic, a poison. A witness, Rudolph Jensen, testified that at the time of the purchase the auctioneer represented that the bran could be used for feeding live stock. This testimony was disputed to a great extent by witnesses for the defendant, which testimony was to the effect that defendant Benson was not near a rack from which certain articles were being sold at the time the bran was offered for sale, did not know that the bran had been offered for sale, had forgotten about the bran, made no representations about the bran, and was in no position to do so; that the farm sale was handled by others for him, he being a man 83 years of age. Rasmussen took the bran to his home, fed it to his live stock, and the live stock became sick. He obtained the services of a veterinary surgeon, but was unable to save his stock; five cows died, five became very sick and were useless to his business; one hog and 20 chickens died.
Plaintiff's evidence further discloses that Rasmussen's health was good; that he took care of his business, doing all things necessary and incident to carrying on a dairy business, prior to May 23, 1935. On that day, when the men came from the rendering plant to take away the dead stock, Rasmussen collapsed, became nervous and was taken to a hospital on May 25, 1935, where he remained until May 29; was again confined in a hospital from October 5 to October 9, 1935; from and after May 25 he was confined to his bed a great portion of the time, did sit up at times and was assisted up and down stairs when he went to the doctor's office, but was unable to do any work of any kind around the dairy farm, and employed labor to work in his stead; that at the time Rasmussen went into the dairy business, ten years before, he was indebted to the local bank in the sum of between $1,500 and $2,000; that at the time of his death he owned a complete set of machinery, ten cows, other live stock, an automobile, and was in debt about $200.
The medical testimony is rather lengthy and technical and, for the purposes of this opinion, only parts thereof which point to Rasmussen's physical condition over the period of time, as alleged in the petition, will be stated. His family physician, who had known him for 21 years who had served him for 18 years and who operated the hospital in which he was confined at the times herein mentioned, testified that he was in the hospital in the month of May, 1935; that Rasmussen was at that time very nervous, unable to sleep; his heart racing, pulse hard and fast, and he was almost irrational. This hospitalization was from May 25 to May 29, 1935. This physician further testified that he saw Rasmussen in July and August; that his mental condition was better, more rational; that he could sit down and talk about ordinary things; that his heart was still in a decompensated state; that witness had taken care of him in September a good deal of the time; that Rasmussen was brought to...
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