Tarkington v. Northwestern Public Service Co.
| Decision Date | 14 June 1940 |
| Docket Number | 30812. |
| Parties | TARKINGTON v. NORTHWESTERN PUBLIC SERVICE CO. ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
It is not error for the court to refuse to instruct on contributory negligence, though pleaded, if the evidence fails to show such negligence on the part of plaintiff.
Appeal from District Court, Lincoln County; Nisley, Judge.
Action by Blanche Fonda Tarkington, administratrix de bonis non with will annexed of the estate of James H. Fonda, deceased against the Northwestern Public Service Company and Edith Smith, administratrix of the estate of Elmer H. Smith deceased, to recover for injuries allegedly due to carbon monoxide asphyxiation. From an adverse judgment, the Northwestern Public Service Company appeals.
Judgment affirmed.
Hoagland, Carr & Hoagland, of North Platte, and William Suhr, of Grand Island, for appellant.
Shuman & Overcash and Beatty, Maupin, Murphy & Davis, all of North Platte, for appellees.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, and MESSMORE, JJ.
This is a companion case to Fonda v. Northwestern Public Service Co., 292 N.W. 712.The pleadings, the issues, the evidence, the witnesses and the briefs on appeal are almost the same in the two cases. In the instant case the jury returned a verdict in favor of the plaintiff in the amount of $813. The assignments of error are in identical language in the briefs of Northwestern Public Service Company, appellant in both cases. The instant case is under the same set of facts as the companion case. Much of the evidence was read from the record of such case. The propositions of law involved are the same. We will, therefore, refrain from repeating the facts and law as set out in Fonda v. Northwestern Public Service Co., supra, with the exception of relating such additional facts as may be necessary to a decision in this case.
The defendant's answer pleaded contributory negligence on the part of James Fonda. Some phases of the evidence, alleged to have constituted contributory negligence, we have previously discussed in the opinion in Fonda v. Northwestern Public Service Co., supra. The contributory negligence complained of centers primarily around the following facts:
At the time of the installation of the convertible gas burner, the defendant company's superintendent, Smith, and employees of the company, found located on the flue pipe leading from the furnace to the chimney what is known, and referred to in the evidence, as a homemade heat-reclaimer, a boxlike affair which entirely inclosed the flue from the furnace to the chimney and also had an air duct leading up to the hot-air region upstairs. This was not standard equipment, but had been installed by Mr. Fonda for the purpose of saving some heat which radiated from the flue pipe, and to transport this heat to the hot-air duct upstairs in the house. At this time Smith informed Fonda that the heat-reclaimer would serve no useful purpose and would have to be removed in order to install the gas equipment, for the reason that it was necessary to turn the flue pipe over for the purpose of putting the down-draft diverter in place of the regular chimney draft. Fonda insisted that, if the heat-reclaimer was removed, it should be replaced because it conserved heat. On a number of occasions the defendant company's employees went to the Fonda residence and found the pilot light and main burner valves turned down. Fonda was advised that such practice was dangerous and should be stopped. All of such evi dence, together with the evidence of the failure of the maid to inform Molley, the defendant company's expert, of the exact difficulty, and likewise her failure to inform the Fondas in this connection, the defendant company assuming the maid to be the agent of the Fondas, constituted the evidence to be submitted to the jury on the question of...
To continue reading
Request your trial