DocketNumber: No. 18134
Citation Numbers: 98 Neb. 442, 153 N.W. 505, 1915 Neb. LEXIS 244
Judges: Hamer, Letton, Rose, Sedgwick
Filed Date: 6/5/1915
Status: Precedential
Modified Date: 11/12/2024
This was an action against Swift & Company and Thomas Smith, its foreman, for damages resulting from the splashing of caustic soda into the eye of plaintiff from a washing machine which he was operating in the laundry of defendant.. He recovered a judgment for $2,500 against both defendants, from which judgment they appeal.
The evidence on behalf of plaintiff is to the effect that there were two washing machines in the laundry which
For the defendants, the foreman denied that he had ever instructed plaintiff to use the soda in the machine, either when in operation or not, and testified that the only purpose for which caustic soda was used in the plant was to make soap to be used in the machines.
Defendants complain that the question of whether plaintiff assumed the risk of the use of caustic soda was not submitted to the jury on account of the refusal of the court to give instruction No. 2 requested by it, but the court of its own motion told the jury: “If you find from a preponderance of the evidence that it was dangerous to pour caustic soda into the cylinder while it was in motion, and that this was known to the plaintiff, or that, by the exercise of reasonable care on his part, he ought to have known that it was dangerous, and with this knowledge he poured the solution in the cylinder while it was in motion at the time he was injured, then it would be your duty to find a verdict for the defendants in the case.” This covers the point so far as required in the case, because if plaintiff ought to have known it was dangerous to thus use the soda the result of the instruction is to hold that, under the law, plaintiff assumed the risk of using it. The mere fact that the court did not use the technical words “as
Defendants contend that there was not sufficient evidence that the plaintiff was unaware of the corrosive nature of caustic soda to justify the submission to the jury of the question whether it was the duty of defendants to warn him of the dangers of its use. Plaintiff denied knowledge of its dangerous character, and this is only rebutted by his admission on cross-examination that he knew it was always handled with tongs when dry, or with buckets or dippers when liquefied, and that it was used as a washing fluid and in the making of soap. He might be aware of all these facts, and yet not know its powerful effect as a solvent of living tissue, and that it would sear and destroy the mucous membrane when it came in contact with it. We see no error in the submission of the question. Adams v. Grand Rapids Refrigerator Co., 160 Mich. 590, 19 Am. & Eng. Ann. Cas. 1152, note, p. 1154; Flaherty v. Powers, 167 Mass. 61; Elliff v. Oregon R. & N. Co., 53 Or. 66; Wagner v. Jayne Chemical Co., 147 Pa. St. 475. See, also, note 35 L. R. A. n. s. 679.
Defendants say: “It will be seen that the only controverted material fact in the case is whether Smith told Shannon to pour caustic soda into the machine while it was moving.” As to this there is a direct conflict in the evidence, and'the verdict settles the fact for this review that he was so ordered. Does the evidence warrant a finding that such a direction was negligent? This is really the crucial point in the case. Defendants insist that it was not, and that it was therefore error to refuse to direct a verdict in their favor. The question is not free from doubt, but, considering all the facts established as testified to by the plaintiff, we believe that it was a question for the jury to determine.
A few other errors are assigned, but we find no reversible error on any of the rulings complained of.
It is complained that the verdict is excessive. The judgment is for $2,500. Considering the pain and suffering of
The judgment of the district court is
Affirmed.