Zimmer v. Brandon
| Decision Date | 18 March 1938 |
| Docket Number | 30048 |
| Citation | 278 N.W. 502,134 Neb. 311 |
| Parties | EDWARD ZIMMER, APPELLANT, v. JAMES H. BRANDON ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: ELLWOOD B CHAPPELL, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. " Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehend that, as the natural and probable consequences of his act, another person, rightfully there, will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises; and, if such care is not exercised by the party on whom the duty rests and injury to another person results therefrom, liability on the part of the negligent party to the person injured will generally exist, in the absence of any other controlling element or fact, and this, too, without regard to the legal relationship of the parties." Lisle v. Anderson, 61 Okl. 68, 159 P. 278, L.R.A.1917A, 128.
2. " A motion to direct a verdict at the close of plaintiff's evidence is, in effect, a demurrer to the evidence, and where the trial court sustains such motion, and dismisses the action, the appellate court, in reviewing such decision, will assume the existence of every material fact which the evidence on behalf of the plaintiff tends to establish and, in addition, give the plaintiff the benefit of the logical inferences therefrom." Zielinski v. Dolan, 127 Neb. 153, 254 N.W. 695.
3. " The existence of negligence and contributory negligence in an action for personal injuries is, ordinarily, a question of fact, and where the evidence in relation thereto is such that minds may reasonably reach different conclusions as to their existence, such question should be submitted to the jury." Sgroi v. Yellow Cab & Baggage Co., 124 Neb. 525, 247 N.W. 355.
Appeal from District Court, Lancaster County; Chappell, Judge.
Action by Edward Zimmer against James H. Brandon and another, doing business as the Brandon & Hartson Plumbing & Heating Company, and another, to recover for injuries sustained when a pole set up by the plumbing and heating company toppled over while plaintiff was working for the other defendant. Judgment for defendants, and plaintiff appeals.
Reversed and remanded.
Woods, Aitken & Aitken, for appellant.
Baylor, Tou Velle & Healey, contra.
Heard before GOSS, C. J., ROSE, EBERLY, CARTER and MESSMORE, JJ., and WILLIAM A. DAY, District Judge.
This is an appeal from an order of the district court for Lancaster county, Nebraska, directing the jury to return a verdict for the defendants in an action for personal injuries sustained by the plaintiff on account of the alleged negligence of the defendants.
An examination of the record reveals that this is an action for personal injuries alleged to have been sustained by the plaintiff, which he suffered when a wrought-iron upright pole, approximately 24 feet in height, on which he was working, toppled over, throwing him to the ground. The defendant, the Lincoln Hatchery, the plaintiff's employer (which is made one of the defendants by reason of having paid compensation insurance), had employed the defendants James H. Brandon and Arva V. Hartson to do certain plumbing and pipe-fitting work in connection with the construction of a gasoline filling station. The defendant, the Lincoln Hatchery, also employed the plaintiff to assist in the general construction work of the filling station. During the course of construction, and on the day that the plaintiff was injured, the defendants Brandon and Hartson had been instructed by the Lincoln Hatchery to join together, by means of a coupling, two pieces of three inch wrought-iron pipe. The shorter piece was about 3 feet in length, and the longer piece was 24 feet in length. The defendants were advised that the pipe, when so joined, was to be erected in an upright position, to which braces and brackets were to be attached, as well as lighting fixtures, and that a baked-enamel sign, weighing some 70 pounds, was to be suspended from the brackets. Braces, brackets and the enamel sign were lying beside the pipe at the time the defendant Brandon and Hartson were directed to work. The defendants were instructed to rethread the longer piece of pipe, the threads of which had been painted. They joined the two pieces of pipe together and then helped the plaintiff and the electrician, who was working about the place, raise the pole so joined to an upright position, and place the end to which the short piece was attached into a hole which had already been prepared in a concrete island in the filling station drive. After the pole had been placed in position, as described, the electrician then placed a ladder against the pole so erected, and spent the remainder of the morning working at the top of the pole, wiring the electrical fixtures attached to the bracket; all of which, together with the braces, had been attached to the pole before it was erected in its upright position. During all the time that the electrician was so working, the defendants were in plain sight of him, as they were working in close proximity to him in completing the installation of the gasoline pumps.
At lunch time, while the electrician and the defendants had gone to lunch, the plaintiff, making use of the electrician's ladder, which had been left erected against the upright pole, prepared to attach the diamond-shaped baked enamel sign to the bracket. He ascended the pole and attached to the center of the bracket a single block with a rope through it, and returned to the ground and then attached the rope to a corner of the sign and pulled it up into position. He then had his boy hold the rope while he again ascended the ladder and hooked the sign on the hook nearest the pole, then reached out to attach the sign to the hook farthest from the pole, at which time the upright pole fell, hurling him to the ground, and as a result of the fall he sustained certain injuries which are permanent in their nature.
Inspection of the pole after it had fallen to the ground revealed that the long upright pole had separated from the coupling, which was about a foot above the ground, causing the long piece to fall its entire length of 24 feet. Further examination disclosed that neither the pole nor the coupling had been broken; that the coupling had not split or widened; that neither the threads on the long pole nor on the coupling were stripped, and from the brightness of the exposed threads, it was evident that only two or three threads of the long pole and the coupling had been engaged or screwed together. The evidence of expert witnesses on behalf of the plaintiff reveals that the standard practice in joining such pipes, as in this case, required that the pipe threads be screwed or entered into the coupling so that not less than ten full threads were engaged, and that engaging only two or three threads of the pipe into the coupling would be decidedly below all recognized and standard practice, and would not be considered satisfactory or suitable work. Testimony further reveals that had the pole been properly assembled it would have withstood the weight and force directed against it at the time of the plaintiff's fall, and in fact it would have withstood from six to eight times the actual load applied.
The plumbing firm of Brandon and Hartson, in undertaking to assemble this upright pipe by joining the two pieces with a coupling, owed a duty to this plaintiff, and any other person rightfully on the premises, to perform the work in a proper and workmanlike manner, and without negligence on their part. As plumbers they are charged with knowledge of what a proper and workmanlike assembly of the upright pole in question would be, and knowledge of the manner in which the pole was assembled was exclusively theirs, as they did the work. They were told for what purpose the pipe was intended to be used, and they knew or ought to have known, or saw or ought to have seen, the purpose for which the pole was being used, and the manner in which the sign and the electrical attachments thereto were being put in position. The electrician placed a ladder against the pole and climbed up it, within close proximity to where they were working on other work about the premises, and to say that they did not see him using the ladder in this manner, although there is no direct proof that they did see him, would be to draw an unwarranted inference. The testimony reveals that no warning...
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