Tully v. Grand Island Tel. Co.

• Decision Date: 16 January 1913
• Docket Number: No. 16,877.,16,877.
• Parties: TULLY v. GRAND ISLAND TELEPHONE CO. ET AL.
• Court: Nebraska Supreme Court

92 Neb. 719

139 N.W. 672

TULLY

v.GRAND ISLAND TELEPHONE CO. ET AL.

No. 16,877.

Supreme Court of Nebraska.

Jan. 16, 1913.

Syllabus by the Court.

One who contracts to perform labor for another takes upon himself the assumption of such risks only as are necessarily and usually incident to the employment.

If the employer has knowledge that the particular employment is, from extraneous causes, hazardous or dangerous to a degree beyond what it fairly imports or is understood by the employé to be, he is bound to inform the employé of the fact, and, if he fails so to do, he is liable to the employé, or his representatives, for such damages as may result by reason of such cause.

It was alleged in the petition, in substance, that plaintiff's intestate, an employé of defendant, was killed by coming in contact with a broken guy wire, heavily charged with electricity, near defendant's place of business, and in the line or track which defendant's employés usually traveled in entering and leaving their place of employment; that defendant knew of the dangerous condition of the wire, but negligently failed to and omitted to remove the danger or warn the decedent of its existence, and the death resulted without negligence on the part of the decedent. Held that, when attacked for the first time after judgment, the petition would be liberally construed, and held to state a cause of action.

Appeal from District Court, Hall County; Hanna, Judge.

Action by William D. Tully, as administrator of the estate of Stewart E. Tully, deceased, for the use of William D. Tully and others, against Grand Island Telephone Company and others and Fairmont Creamery Company. Judgment for plaintiff, and defendant Fairmont Creamery Company appeals. Affirmed.Greene, Breckenridge, Gurley & Woodrough, of Omaha, and R. R. Horth, of Grand Island, for appellant.

O. A. Abbott and A. G. Abbott, both of Grand Island, for appellee Tully.

W. H. Thompson, Chas. G. Ryan, F. W. Ashton, and B. H. Paine, all of Grand Island, for appellees Grand Island Telephone Co. and others.

REESE, C. J.

Plaintiff, as administrator of the estate of Stewart E. Tully, deceased, brought suit in the district court against the Grand Island Telephone Company, the Grand Island Electric Company, and the Fairmont Creamery Company, corporations, for damages resulting from the death of Stewart E. Tully; said death being caused by the alleged negligence of defendants. Issues were joined, a trial had, when the jury returned a verdict in favor of plaintiff and against all defendants for $2,000. No motion for a new trial was filed by either the telephone or electric company. A motion was filed by the creamery company, but was stricken from the files because not filed within the time prescribed by law, when judgment was rendered against all defendants for the amount of the verdict. The creamery company appeals.

Among the errors assigned was that of the action of the district court in striking the motion for a new trial from the files. That ruling was reviewed by this court, and the decision is reported in 87 Neb. 822, 128 N. W. 508; the order of the district court being affirmed.

[3] There remains but one question for decision, which is: Do the allegations contained in the petition state facts sufficient to constitute a cause of action against the appellant, the creamery company? The petition is of considerable length, and its substance only will be here stated. It is alleged that the electric company had its wires of very high voltage strung upon the poles in the streets of the city of Grand Island; that the telephone company also had its wires similarly placed in close and dangerous proximity to the wires of the electric company, and in so placing their wires both were negligent; that, at a place near the building occupied by the creamery company, there was a guy wire attached to the pole occupied by the two defendants; that the guy wire came in contact with the wires of said defendants by which it became heavily charged, the lower end thereof becoming released, and the wire dropping upon the street; that early in the morning the decedent, being in the employ of the creamery company, while...