Thomsen v. Jobst

140 N.W. 269, 93 Neb. 375, 1913 Neb. LEXIS 83

• Court: Nebraska Supreme Court
• Decided: March 14, 1913
• Docket: No. 17,062
• Status: Published

Opinions

Sedgwick, J.

The plaintiff recovered a judgment in the district court for Douglas county for damages on account of injuries sustained while in the service of the defendant. The defendant has appealed.

There is little, if any, conflict in the testimony. The record discloses the following facts: The defendant, at the time the accident in question occurred, was a contractor and builder, carrying on his business in the city of Omaha. The plaintiff was a carpenter some 35 years of age, having had many years’ experience in that line of work, and having been employed by the defendant from time to time. On the 17th day of May, 1909, plaintiff was working for the defendant, who was just completing a contract for the erection of a six-story warehouse for the Moline Plow Company. The job was completed, with the exception of a small amount of finishing in a showroom, situated in the sixth story of the building. The unfinished work required the nailing of some short pieces of molding around the top of a wooden post which was from 14 to 16 feet high. One Rasmus Nelson, who was defendant’s foreman in charge of the construction work, told plaintiff to finish the top of the post. Plaintiff testified that he said to Nelson: “Ain’t I going to have a scaffold for that?” Nelson said: “A man that can’t work on that stepladder can’t work on this building.” Plaintiff thereupon placed a stepladder, which had been constructed on the premises by himself and a fellow workman, and with some tools and the pieces of molding, which had been sawed for the purpose of finishing the post, ascended to the top of the ladder, and, while standing in that position, commenced to hail the pieces of molding in place. Nelson stood by directing the work, and called his attention to the fact that one piece of the molding was not straight. Plaintiff attempted to fit the molding, and in so doing pushed the stepladder away with his feet. He caught hold of the molding, but it was not strong enough to hold his weight, and he fell to the floor, and thus sustained the injuries of which he complains.

Plaintiff further testified that the use of a stepladder was dangerous, and one of his witnesses stated that it was so dangerous that a man ought not to use it at all. This witness admitted, however, that it was possible to do the work by the use of a stepladder, but that a man ought not to do it, if he wanted to be as careful of himself as he ought to be. The plaintiff admitted that he knew the use of the stepladder was dangerous, but stated that he used it because he did not want to lose his job. Defendant and his witnesses testified that it was customary to use a stepladder to nail short pieces of molding, like those in question, in place; that a scaffold was not required, and was never used for such a purpose, unless large amounts or long strips of molding were to be fastened in place. It was contended by the defendant upon the hearing that the foregoing facts were not sufficient to render defendant liable for the injuries sustained by the plaintiff, and that the district court erred in refusing to direct the jury to return a verdict in his favor.

A stepladder is generally considered to be one of that class of simple tools that any workman is supposed to understand. There are many cases holding that one who uses such simple tools cannot be heard to say that they were defective and dangerous, and that he was not aware of the defect. This is not the condition here. Plaintiff admits that he knew that the use of the stepladder under the conditions existing was dangerous, and, under ordinary circumstances, he would be held to have assumed the risk of injury in so using it. The defendant also admits that there is sufficient evidence in the case from which the jury might find that, under the circumstances, to use the stepladder as it was used was dangerous. The question that Ave must determine is: Can the defendant now rely upon the fact that plaintiff knew the danger that he incurred, and allege, that he assumed the risk and was guilty of contributory negligence?

In Lee v. Smart, 45 Neb. 318, it is said: “Where the servant, in obedience to the requirements of his master, incurs the risk of machinery or appliances which, although dangerous, are not of such a character as to threaten immediate injury, or where it is reasonably probable that they may be safely used by extraordinary caution and skill, the master will be liable for a resulting accident.” This conclusion appears to be derived from the language used in Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578. Several other opinions of this court are cited as upholding this doctrine. The reason of this exception from the general rule is not stated in the opinion in Lee v. Smart, supra. The court appears to rely upon the authorities cited as a sufficient support for the holding. In that case it was conceded that the plaintiff had full knowledge of the dangerous character of the implement used, and yet the defendant was not allowed to defeat his action on the ground that he had either assumed the risk or had been guilty of contributory negligence. It is difficult to perceive how these former cases can be distinguished from the case at bar. If the defendant is not allowed to assert assumption of risk or contributory negligence because he has promised to remedy the defect in the dangerous implement, and so induces the plaintiff to continue its use, why should he be allowed to rely upon such defenses when he has insisted that the defendant shall continue to use the dangerous implement, and has induced him to do so by a threat of this nature, and not only that, but has stood by and directed him in the dangerous use of the implement. See Sapp v. Christie Bros., 79 Neb. 701, and note to Lowe Mfg. Co. v. Payne, 30 L. R. A. n. s. 442.

The defendant complains that evidence was received over his objection “that some other way of conducting the business than that which was used was usual and customary.” In Central Granaries Co. v. Ault, 75 Neb. 249, 255, it was upon rehearing held that the master is not necessarily negligent because he uses such machinery and appliances as are not in common use. It is thought that .such a rule would tend to prevent the adoption of better and safer tools and appliances. The holding of the trial court is not inconsistent with Central Granaries Co. v. Ault, supra. The evidence admitted in the case at bar was not that the implement used was not in common use. It was to the effect that it was not customary to use a stepladder in work of this nature, under conditions there existing, and that the method used was more dangerous than the ordinary one, and this is clearly competent under the rule as stated in Central Granaries Co. v. Ault, supra.

The case is very close upon the facts presented, but we cannot say that the findings of the jury are so clearly wrong as to require a reversal. The judgment of the district court is

Affirmed.