Young v. Western Furniture & Manufacturing Company

• Decision Date: 13 October 1917
• Docket Number: 20078
• Parties: IDA M. YOUNG, ADMINISTRATRIX, APPELLEE, v. WESTERN FURNITURE & MANUFACTURING COMPANY, APPELLANT
• Court: Nebraska Supreme Court

164 N.W. 712

101 Neb. 696

IDA M. YOUNG, ADMINISTRATRIX, APPELLEE, v. WESTERN FURNITURE & MANUFACTURING COMPANY, APPELLANT

No. 20078

Supreme Court of Nebraska

October 13, 1917

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

F. M Hall and H. W. Baird, for appellant.

Lincoln Frost and Guy T. Tou Velle, contra.

HAMER J. ROSE and CORNISH, JJ., not sitting. SEDGWICK, J., concurs in the conclusion.

OPINION

HAMER, J.

The plaintiff, Ida M. Young, administratrix of the estate of Arthur Young, deceased, brought this action in the district court for Lancaster county against the Western Furniture & Manufacturing Company, appellant. It is brought under the employers' liability act (Laws 1913, ch. 198) to recover damages on the ground that the deceased came to his death while in the employ of the defendant and under such circumstances as to make the defendant liable under that act. The evidence shows that the deceased had been employed as a general helper around the defendant's plant for many years. The defendant company was engaged in the business of manufacturing mattresses and other articles. The plaintiff's decedent was employed in this branch of the establishment. The briefs for plaintiff and also for appellant speak of the death as occasioned by heat stroke or heat prostration. The evidence shows that the decedent was engaged in cleaning and oiling two motors which were used by the defendant company in its business. These motors were located in the interior of the building on platforms between the ceiling and the floor. The decedent went down from one of the platforms and refilled an oil can, and attempted to ascend the ladder leading to the motors, when he staggered, and, being unable to climb the ladder, the foreman and another employee came to his assistance. They took him out into the air. He said that he wanted to return to work, and they went back with him into the building. He appears to have been only able to wipe his hands on a rag when he fell down again. Later he was taken home, and remained very ill until the time of his death. July 17, 1915. His illness began on the 10th of that month.

In appellee's brief the building where the business of the defendant was carried on is described as being about 55 by 35 feet in dimensions, and constructed of corrugated steel or sheet iron and covered with tarred roofing. The location is said to have been in the southwest portion of the city and lying low with respect to the general elevation. The purpose was apparently to show that the building was located on low ground where the heat might be excessive, and that the building was so constructed that it would be a very hot place to work in. It is said that the roof sloped from a height of about 18 feet on the east side to 12 feet on the west side, and "at such an angle as to allow the sun on a hot July afternoon to concentrate the full force and effect of its rays on said tarred roof." The building seems to have been unplastered. It was divided into four rooms. It is claimed that the deceased met his injury in the room located in the northwest corner of the building. It was the "felt" room where the picking of the filling for mattresses was conducted. It is claimed by appellee that this room was filled with dust, and that it was customary for the deceased to tie a handkerchief over his nostrils while at work there. While the thermometer stood at about 86 to 87 degrees when Young's attack began, it is claimed that this particular building was "naturally hot in summer." The contention is that a building of sheet iron with tarred roofing and insufficient ventilation, built on low ground, would be a hot place on a summer day in July.

It is contended in the brief of the appellant that the work of cleaning and oiling a motor is not strenuous labor and does not require any great physical effort. The deceased was going about his usual work, and he went about it in his own way, and he had no specific instructions from anybody. It seems that he had been away from his work for three or four days before the fatal attack began. He came back to work on Friday morning, and worked Friday and Saturday morning, and the attack began on Saturday afternoon at 3 or 4 o'clock. It is shown that the deceased may have used intoxicating liquors. He is shown to have used some whiskey at times, which he drank out of a flask, and he had often been seen at saloons in Havelock when Lincoln was dry. He was 57 years of age. It seems that the building in question had been built about 7 years, and that the deceased had worked in it during all of that time. It is claimed that before that time he had worked for the defendant in a hotter building and one more poorly ventilated than the building in question.

On behalf of the defendant it is claimed that the deceased died of heat stroke or sun stroke, and that this sort of illness "is just as much a disease as rheumatism or typhoid." It is thereupon argued that, because it is a disease, death occasioned by it is not an accident, and that the particular section of the statute referred to does not in any way relate to it.

After the evidence was in, counsel for the defendant moved the court for judgment in favor of the defendant on the ground that the petition did not state a cause of action, and that the evidence did not bring the case within the statute. The motion was overruled, and the defendant excepted.

On behalf of the defendant it is strenuously insisted by counsel that Young was not injured in person or body, and that there was no violence to his physical structure, or any disease or infection resulting from his work, and that his sickness or disease, if any, was due to natural causes, and in no way connected with or...