Joseph v. Cudahy Packing Co. , 95 Neb. 397 ( 1914 )

Rose, J.

This is an action to. recover $15,000 in damages for alleged negligence resulting in the death of John Ozuba, who had been an employee of defendant. While engaged in wheeling into a tank-room, truck-loads of materials used in manufacturing glue, he fell into a vat and was scalded with hot fluid. Defendant denied the negligence imputed to it. The issues were tried to a jury. The district court gave a peremptory instruction in favor of defendant, and from a judgment of dismissal plaintiff appeals.

The tank-room was 40 feet wide and 90 feet long, extending north and south, with a row of 10 open vats below the surface on each side. From the southeast corner they were numbered consecutively up. the east side and down the west from 1 to 20. Between the rows there was a platform 16 feet wide. The entrance and the exit were at the southwest corner by vat 20. In the tank-room there were five lights along each side and three in the middle. One of those along the west side was between vats 19 and 20, and another near the platform at the entrance and the exit. Ozuba came into the tank-room with a truckload of materials, went north, and emptied the contents of his truck into vat 13. He then turned to go back the way he had entered. On his way out he mistook the light between vats 19 and 20 for the one at the exit, and fell into vat 19.

Was the peremptory instruction erroneous? It is alleged in the petition that defendant was negligent in failing to protect employees from the vats by railings. There is no proof to sustain this charge. It is not shown that defendant did not conform to the usual and ordinary methods and customs in respect to railings, nor that railings were reasonably necessary for the protection of employees in the exercise of ordinary care for their own safety under the circumstances. On the contrary, the evidence shows without contradiction that railings sufficient to prevent employees from falling into hot liquids would interfere with the work of dumping ingredients into the vats as needed in manufacturing glue. A platform 16 by 90 feet had been provided for workmen. The seething vats along the sides gave their own signals of danger. On this issue the evidence would not support a judgment against defendant.

Plaintiff also charges that defendant was negligent in allowing too much steam from the vats to accumulate in the tank-room. During the forenoon on the day of the accident a fan, which had been used to blow steam out of 'the tank-room, was for some unexplained reason not in operation. A witness, who was on the platform at the time, testified the steam was so dense that it obscured lights at a distance of six feet. The explanation of Czuba, after he had been taken out of the vat, was proved by plaintiff. When asked, “What was the matter?” and, “Couldn’t you see the way?” Czuba replied: “It was my mistake. I made a mistake of the lights.” The import of this evidence, in connection with other undisputed testimony, is that Czuba went southward until he approached the light between vats 19 and 20, and, mistaking it for the light at the exit, turned toward the west, the direction of the passageway out, and fell into vat 19.

One of the answers of defendant to the charges of negligence is that Czuba assumed the risks of his employment. Is recovery defeated on this ground? There is no proof that the fan, when in operation, cleared the tank-room of steam. The only difference between the conditions of the steam when the fan was in motion and when it was not was in the degree of density. Gzuba’s regular duties kept him in the hog-killing department, but, when work there was slack, he was transferred to the tank-room. He had been working in the latter place a week or two at a time for a year and a half. He had been at work there the last time three days or more. The accident occurred at 11:30 in the forenoon, and he had come on duty at 7 o’clock in the morning. Between those hours he came into and went out of the tank-room at intervals of about 15 minutes. There is nothing to show that the conditions as to steam in the morning had changed before 11:30. The foreman testified that he had a conversation with Czuba before the accident. The account of the former as to what he said is: “I just said to him, ‘Kind of watch out. It is kind of steamy.’ I says, ‘Look around a bit.’ ” He also said that Czuba answered: “I know this about as good as you.” The conditions were not only obvious to Czuba, but were in fact known to him. With nothing to show a change in the hazards of his employment, he had been in and out of the tank-room at short intervals for nearly half a day. He voluntarily continued to perform his duties with knowledge of their risks. He made no complaint in respect to them. There was no attempt by plaintiff to show that defendant had promised to improve existing conditions. On the undisputed evidence the case falls within the following rule of law: “An employee assumes the risks arising from the unsafe condition of premises where his labor, or a portion of it, is to be performed, when the risks and conditions are known to him, or are apparent and obvious to persons of his experience and understanding, if he voluntarily enters into the employment, or, after commencing, makes no complaint or objection in respect to the hazards.” Chicago B. & Q. R. Co. v. McGinnis, 49 Neb. 649.

The accident cannot be contemplated without emotion; but the record contains no evidence of actionable negligence on the part of defendant, and consequently the peremptory instruction must be approved.

Affirmed.