Westover v. Hoover

• Decision Date: 09 January 1911
• Docket Number: 16,249
• Citation: 129 N.W. 285,88 Neb. 201
• Parties: EDWARD WESTOVER, APPELLEE, v. ABRAHAM L. HOOVER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

129 N.W. 285

88 Neb. 201

EDWARD WESTOVER, APPELLEE, v. ABRAHAM L. HOOVER ET AL., APPELLANTS

No. 16,249

Supreme Court of Nebraska

January 9, 1911

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

J. B Strode, E. C. Strode and D. C. Burnett, for appellants.

E. P Holmes and G. L. De Lacey, contra.

LETTON, J. REESE, C. J., not sitting.

OPINION

LETTON, J.

This is an action for personal injuries alleged to have been suffered by the plaintiff while in the defendant's service on account of having been set to work by one Devore, the defendants' foreman, in an unsafe place, near a pit containing an ice machine in operation, which was not properly lighted, a piston and revolving wheel upon which was left unguarded, and no warning was given him as to the danger, by reason of which his heel was caught and crushed by the revolving wheel and piston. The defense is a denial that the relation of master and servant existed; an allegation that plaintiff was in the employ of an independent contractor; a plea that plaintiff was familiar with the premises; assumption of risk; and contributory negligence.

Defendants are proprietors of a hotel with a large basement or cellar under the building containing boilers, engines, pumps, and other machinery used in the operation of the business. The plaintiff is a young man 23 years of age, of considerable experience in working around machinery, having been employed for about a year at the city waterworks, part of the time running one of the pumps there. About a week before the accident he was employed by Devore, defendants' foreman, to dig a pit in the basement, in which it was proposed to bore a new well and to place pumping machinery, and to do other common labor. Prior to this time one Loso, who was in the well-boring business, had made a contract with the defendants whereby he was to bore a well in the pit where plaintiff worked. He was to furnish the labor, machinery, and material, except such material as had been taken from the old well, and was to receive $ 1.50 a foot if he procured a supply of water, and no payment if he failed to do so. On the Saturday before the accident, A. L. Hoover, one of the defendants, telephoned to Loso urging him to come and do the work. Loso informed him that he was short of laborers, as two of his men were sick. Hoover then told him that he had some extra help that he could use. On Monday forenoon, about 11 o'clock, Loso came to the hotel. Up to this point there is no conflict in the evidence.

Plaintiff testifies that when he finished the work which he was doing, about 11 o'clock in the forenoon, Devore told him to go to Loso's place to help Loso bring in some machinery that afternoon, and gave him street car fare to that point. Devore denies this, and says that he told plaintiff his work was done, but that Loso needed help, and that he could get a job with him. Loso says that when he came to the hotel that morning Devore brought out three men to him, and that he took the plaintiff and another named Stone to use in his work. Plaintiff went to Loso's and assisted him in bringing to the hotel a small engine and other machinery to use in sinking the well. Loso and he worked at placing this engine in the basement that afternoon, but did not finish setting it that day. A large ice machine about twelve feet high stood in a pit about three feet deep in the floor of the basement. The basement floor and the sides and floor of the pit were made of concrete. There was a space of three feet between the end of the machine and the walls of the pit. There being another pit nearby, it was necessary to set Loso's engine so that a pulley projected over one corner of the pit. Plaintiff testifies that the next morning, while Loso and he were "lining up" the engine so as to set it properly for running the machinery at the well, Loso said, "We will put the belt on," and lifted the center portion of the belt, while the plaintiff went into the pit in order to slip the belt over the pulley; that in the act of doing so his foot slipped, or he stepped back, when his heel was caught by a projecting crank pin on the wheel of the ice machine, and was crushed between the pin and the floor of the pit. There is a lower pit about eight inches deeper than the main pit. The crank pin of the revolving wheel came about one-half inch from the edge of the lower pit and went down into it about two inches as it revolved. He testifies that it was dark at that place, and that while he had knowledge that the ice machine was there, and that it had three cylinders and piston rods and wheels, he was not familiar with the location or construction of the revolving wheel at the bottom of the pit; that the piston rod is flush with or just inside the machine, and the revolving wheel is about flush with the end of the machine. On cross-examination he says he cannot say whether Loso told him to get into the pit or not, but that he thought the most convenient way to put the belt on the pulley was by getting into the pit. The pulley was about 18 inches above the floor of the basement and about 4 1/2 feet above the floor of the pit. He first testified that it was dark at this point, but afterwards said that there were a number of electric lights near the machine, and, finally, "that it was quite light down there," and that he did not think he was hurt because the lights were not burning. After being hurt he pulled his foot out and rolled or lay on the side of the pit. He testified that he then saw for the first time that the base of the ice machine was in a lower pit about eight inches deep. He has not been to the locality of the accident since that time. It is evident from his testimony that there was light enough to enable him to see the wheel and crank which he describes, and also sufficient to enable him to see that the crank descended into the lower pit when the piston rod came down.

The evidence in behalf of the defendants is very positive that there are a large number of electric lights in the basement, in the boiler room, and around the machinery; that these lights are all on one circuit, and were kept burning night and day.

In the discussion of the legal principles involved, we will assume that the testimony of the plaintiff and his witnesses and the undisputed testimony of the others was true, since the jury found for him by their verdict. The sole question presented is whether the evidence is sufficient to support a verdict for the plaintiff against the proprietors of the hotel. It is clear that Loso was an independent contractor. In fact, this is undisputed. Accepting the plaintiff's statement that Devore directed him to work for Loso, also Loso's undisputed testimony that he made no contract or agreement as to employment and wages with the plaintiff, but that he used the men that Devore pointed out to him under the previous arrangement with Hoover, the question arises whether at the time of the injury the relation of master and servant existed between plaintiff and defendants.

The plaintiff's theory is that while he was engaged in the defendants' service he was furnished an unsafe and dangerous place in which to work, and was not warned of the danger, and that consequently the defendants are liable. The defendants contend that at the time he was hurt he was working for...