Beber v. Beebe & Runyan Furniture Co.

Rose, J. For alleged negligence resulting in the death of Wyman Beber, his widow, as administratrix of his estate, brought this action against his employer to recover damages in the sum of $15,000. At the close of the testimony on behalf of plaintiff, the trial court sustained a motion to dismiss the action on the ground that the evidence was insufficient to sustain a verdict in her favor. From the judgment of dismissal, she has appealed. Beber and a fellow-servant were engaged in moving dressers in a room in defendant’s warehouse in Omaha, December 28, 1910. They sat on the floor, braced their feet against a cleat, and with their backs pushed four dresserspiled one upon another; each being wrapped in excelsior and burlap and resting upon its back. While they were-thus at work, the top dresser struck another pile, fell on Beber, and fatally injured him. The negligence imputed to defendant consisted in ordering Beber from his regular employment as a glass crater to the unfamiliar and dangerous task of moving dressers and in requiring him to perform his new duties without sufficient help. It is argued by plaintiff that negligence in these respects was the proximate cause of the injury. Is there any evidence that the order amounted to negligence under all of the circumstances proved? While Beberwas a glass crater, he had, when not thus engaged, frequently worked at different times for two months at moving dressers. He was familiar with that work in the room where he was injured, though he was not used to the actual pushing- — an exertion within his strength, but not the proximate cause of his injury. Evidence that it was his duty, when not engaged at his regular employment, to be busy' at something else is uncontradicted. When the order was given, he obeyed without complaint or protest. There was no latent or hidden danger. Beber was an employee of' mature years and of ordinary intelligence. The dangers incident to the motion resulting from physical exertion of employees and to the ordinary operation of familiar laws. [448] of gravitation were open and obvious. The order, under tbe uncontradicted proofs, was not given under circumstances requiring the master to warn tbe servant of tbe dangers mentioned. Lewis v. Koller & Smith, 186 Fed. 403. It is clear that there was no evidence of negligence in tbe giving of the order. It follows that tbe trial court did not err in refusing to submit this issue to tbe jury. Is there evidence that tbe employee was required to engage in an unfamiliar and dangerous work without sufficient help7 A pile contained from three to nine dressers and was generally moved by three men, one to steady it and two to push it. Tbe pile being moved when tbe accident occurred contained four dressers. Beber and bis fellow-servant were strong enough to move it, but plaintiff insists that tbe foreman went away without, leaving any one to steady tbe pile, while it was being moved in tbe manner already described. In this connection it is also argued that Beber was required to go ahead with bis work in tbe absence of tbe foreman. There is proof that tbe foreman went away temporarily without leaving any one to steady tbe pile, but there is no proof of actionable negligence in these respects. Tbe instruction to keep busy was a general order previously given to all employees. There is no evidence thait tbe foreman directed tbe work in band to proceed in bis absence. Beber knew from observation and personal experience tbe purpose of steadying a pile, while it was being moved. There is evidence tending to show that a broken, projecting leg of the dresser which fell on Beber caught on a pile be bad just assisted in moving. He did not ask for more help or wait for tbe foreman’s return. Knowing obvious conditions and dangers as Avell as bis master be voluntarily proceeded Avith bis work. Under familiar principles of law, these are circumstances under which a master is not chargeable with actionable negligence for failure to furnish more help for tbe work in band. Tbe proofs do not show that tbe accident itself, when considered with all of tbe attending circumstances, neces [449] sarily involves actionable negligence on part of defendant. The dismissal, therefore, was without error. Affirmed. Barnes, Fawcett and Hamer, JJ., not sitting.