Schmidt v. Sw. Brewery & Ice Co.D1

• Decision Date: 06 January 1910
• Citation: 15 N.M. 232,107 P. 677
• Parties: SCHMIDTv.SOUTHWESTERN BREWERY & ICE CO.d1
• Court: New Mexico Supreme Court

15 N.M. 232

107 P. 677

SCHMIDT

v.SOUTHWESTERN BREWERY & ICE CO.d1

Supreme Court of the Territory of New Mexico.

Jan. 6, 1910.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action by Joseph Schmidt against the Southwestern Brewery & Ice Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where the court stated the nature of the mental disability to avoid a release for injury, and that the burden was on plaintiff to establish such disability, refusal to charge that the burden was on plaintiff to show himself incompetent when the release was executed was not erroneous.

Marron & Wood, for appellant. N. B. Field, for appellee.

PARKER, J.

This is an action for damages for personal injuries. It appears that plaintiff below was a brewer engaged in brewing beer for defendant below. In the course of his duties he used a covered kettle or cooker in which the materials for the manufacture of beer were cooked under steam pressure. Several months prior to the action, plaintiff noticed a leak in the cooker, and called defendant's attention to the same and requested that it be repaired. Defendant requested plaintiff to examine the cooker, which he did, and repaired the same with a patch. The cooker still leaking, plaintiff, by order of defendant, removed the patch and applied white lead, after which the leak was stopped. This was about three or four weeks before the accident, and at that time defendant's foreman, when his attention was called to the defect, stated to plaintiff that they had to brew a couple of times more until the new bottom was installed, and instructed plaintiff to put on the other patch, and to proceed with the use of the cooker. Afterwards another leak appeared and was, by common consent, repaired by the plaintiff in the same manner. The cooker still continuing to leak and defendant still urging plaintiff to continue to use the cooker, about the last of November or the first of December, 1905, a boiler maker was summoned, and, in pursuance of his opinion as to the requirements in the way of repairs, a new bottom for the cooker was ordered. Plaintiff testified that the day of the accident, January 2, 1906, he had another talk with the foreman, and asked him “if that kettle ever got fixed, and he answered me the same way back again-that it ought to have been fixed before; it generally takes two or three or four months before we ever get something done in this foundry.” It appears from the testimony that plaintiff relied on the promise of repair and would not have remained in the service but for such promise. The jury found specially that the cooker, at the time of the accident, was not in such bad condition and state of repair that a man of ordinary care, prudence, and precaution would have refused to use the same, thus absolving plaintiff of contributory negligence in that regard. The jury found specially that defendant was guilty of negligence in failing to repair the cooker when required. We have, then, a case of defective appliance known to both master and servant; the defective appliance not so palpably dangerous from the defect as that an ordinarily prudent, careful, and cautious man would refuse to use it; and promise of the master to repair, and a request by the master to the servant to use the appliance until repair; a reliance upon the promise of the master to repair by the servant; and injury to the servant by means of the defective appliance. Under such circumstances it is clear that the master is liable. Sherman & Redfield on Neg. § 215; Hough v. R. R. Co., 100 U. S. 213, 25 L. Ed. 612; R. R. Co. v. Young, 49 Fed. 723, 1 C. C. A. 428; Gowen v. Harley, 56 Fed. 973, 6 C. C. A. 190; Detroit Crude Oil Co. v. Grable, 94 Fed. 73, 36 C. C. A. 94; Chicago, etc., Co. v. Van Dam, 149 Ill. 347, 36 N. E. 1024; Breckenridge Co. v. Hicks, 94 Ky. 362, 22 S. W. 554, 42 Am. St. Rep. 361; Lutz v. Ry. Co., 6 N. M. 496, 30 Pac. 912, 16 L. R. A. 819.

1. Defendant predicates its first contention upon an alleged conflict between the special findings of the jury of negligence on its part in failure to repair, and the special finding that the appliance was not so palpably dangerous as to preclude its use by a reasonably prudent person, and the general verdict for plaintiff. It is perfectly apparent, however, that the contention is unsound and based upon an erroneous view of the law. During the running of the promise to repair a known defect the master's liability is a continuing one, and the servant, relying upon the promise, may recover in case of accident resulting from the defect, although obvious, if the claim to damage is otherwise well founded. If the performance of the promise to repair is unreasonably delayed the servant may, under some circumstances, be held to have assumed the risk of the employment, and if the defect renders the service so...