Joseph v. Cudahy Packing Co.

Hamek, J.,

dissenting.

The plaintiff’s decedent fell in the vat of boiling glue and was cooked to death because he was unable to find his way out of the tank-room filled with steam. He could not see. It was the duty of the defendant to furnish a reasonably safe place in which to conduct his business of glue making, and, when the fan failed to remove the steam from the room so that the occupants could not see where to go, the place was then not “reasonably safe,” and it was the duty of the defendant company to shut down until the necessary repairs were made and the room was in a normal condition. The failure of the fan to remove the steam produced a temporary condition that found these men working there, and' not likely to insist on being at once discharged. They naturally would want to go along with the work while it continued, and, as the interference was supposed to be only temporary, they were not likely to make objection on that account. It cannot, I think, for that reason be said that a fair foundation was laid for an assumption of risk. The workers could not have contemplated it. That the injured man may have said something when spoken to about being careful that indicated *403that he was impatient was hut a natural expression of one not use'd to receiving instructions. In any event the question of negligence was clearly in the case, and it should have been submitted to the jury for their verdict. A verdict for the plaintiff under the testimony would not have been “so wholly unsupported by the evidence that we can say, as a matter of law, that it is clearly wrong,” following Armstrong v. Union Stock Yards Co., 93 Neb. 258. Therefore, if rendered, the verdict would have to stand.

The question of negligence is clearly one to submit to the jury. Neice v. Farmers Co-Operative Creamery & Supply Co., 90 Neb. 470. In that case it was said in the body of the opinion: “The matter is peculiarly within the province of the jury, and, when the evidence is conflicting, this court cannot interfere with the verdict of the jury, unless upon the whole evidence the verdict is clearly wrong.”

As to the assumption of risk, it is held in Elliott v. General Construction Co., 93 Neb. 453, that “An employee does not ordinarily assume risks arising from conditions beyond his knowledge and not obvious to a person of his experience and understanding.” That seems to hit this case squarely.