
    Greely Baker, appellant, v. Swift & Company, appellee.
    Filed December 7, 1906.
    No. 14,544.
    Directing Verdict. Where from the undisputed evidence it appears as a matter of law that the plaintiff should not recover, the action of the trial court in directing a verdict for the defendant held to be the only proper course to pursue.
    Appeal from the district court for Douglas county: William A. Redick, Judge.
    
      Affirmed.
    
    
      John 0. Yeiser, for appellant.
    
      Greene. Break enridge & Kinsler, contra.
    
   Jackson, C.

The action is one to recover damages for a personal injury which the plaintiff claims to have sustained on account of the negligence of the defendant. At the close of the plaintiff’s evidence the jury ivere instructed to return a verdict for the defendant. The plaintiff appeals.

The only testimony in the record is that of the plaintiff himself, and it tends to prove that the plaintiff ivas employed in the liog-killing department of the defendant, A\rho is engaged in operating a packing house in South Omaha. He was employed in-the same room with some 40 or 50 other workmen, all engaged in the same character of employment. On the 8th day of April, 1902, their duties for the day Avere terminated at about 8 o’clock in the afternoon. The plaintiff went immediately to one of the benches used by the employees in the course of their labor, where he Avas engaged in washing himself and cleaning bis tools preparatory to leaving the building, when another workman, who Avas at that time using a hose through Avliich hot water was being forced under pressure of steam for the purpose of cleaning up the room, as it was a daily custom tó do after the killing operations for the day had ceased, either carelessly or purposely turned the hose in the direction of the plaintiff so that the water Avas forced onto his person, resulting in his being severely scalded. The employee avIio Avas using the hose Avas a negro boy about 14 years of age, and had previously been performing the same character of service as that required of the plaintiff. Whether he Avas so employed on the day of the injury does not appear. The plaintiff and other employees in his department Avere all under the direction of the same foreman. It appears also from the testimony of the plaintiff that the day before the injury he had engaged in an altercation with the negro.

It is contended by the appellant that at the instant the last animal passed through their hands for the day the relation of master and servant ceased, and that the application of the fellow servant rule no longer applied, and that he was entitled to the same protection a stranger Avould be entitled to aaíio came, upon the, premise's of the defendant by invitation; that no rule of the establishment required him to wash himself or clean his tools on the premises, but that the fact that conveniences Avere at hand for that purpose Axras a mere invitation to do so. It is Avorthy of notice in that connection that a time keeper was employed by the defendant, who gave each laborer a time-check Avhen he entered the establishment in the morning, and that each,- as he completed his day’s labor deposited his check when he passed out. This the plaintiff had not done at the time of the injury.

We do not regard' the fact that the appellant had actually ceased from labor for the day as being at all important in a determination of the questions involved. He Arms still on the appellee’s premises, and it does not folloAv that, because the injury resulting from the negligence of bis fellow servant Avas not concurrent in point of time Avitb bis actual employment, tbe master would be thereby liable. Butler v. Townsend, 126 N. Y. 105. We entertain no doubt that tbe appellant and tbe negro boy were fellow servants under tbe rule of Kitchen Bros. Hotel Co. v. Dixon, 71 Neb. 293. Tbe case in some respects is similar to that of O’Neil v. Pittsburg, C. C. & St. L. R. Co., 130 Fed. 204. Tbe same principle, at least, was there involved as in tbe present case. It is urged, hoAvever, that tbe employment of a negro boy of tbe age of 14 years for the performance of tbe service required was of itself negligence. From tbe testimony of the appellant it is evident that tbe negro was well developed for a boy of bis. age, as much so as tbe appellant himself, who was some years older, and we do not concur in tbe views expressed by appellant that tbe race to which he belonged is a proper element to be considered in determining whether or not be was capable of performing tbe service required of him.

Several assignments of error relate to objections to questions propounded by counsel for appellant, which were sustained by tbe trial court. They are all disposed of in the brief by tbe statement: “The other assignments only affect tbe record in shOAving tbe court prevented plaintiff from clearly rebutting the attempt to show conso-ciation. Had tbe court not sustained objections to questions asked to show two distinct gangs and two separate foremen and different times of Avork' for each gang as shown in remaining assignments of error, we would have affirmatively shoAvn no possibility even for tbe existence of any such possible matter to have been interposed as a defense.”

There are two answers to tbe suggestion: First, that the appellant Avas finally permitted to testify that he did not know whether there was any other boss or foreman after tbe last bog went over tbe line, or whether tbe foreman of tbe bog-killing gang stayed and continued to be. boss over any other gang that might follow; and, second, no offer to prove any special fact was made after the objections to the interrogatories were sustained.

Tlie judgment of the district court was right, and we recommend that it be affirmed.

Duffie and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.  