
    Elmer E. Salisbury, appellant, v. Press Publishing Company, appellee.
    Filed June 8, 1906.
    No. 14,379.
    1. Master and Servant: Appliances: Duty of Employee. Ordinarily, it is the duty of an employer to use reasonable care that the tools and appliances which he furnishes his employees are reasonably fit and safe for the use for which they are furnished, but this does not relieve the employee from the exercise of his own judgment in the use thereof, and if he puts them to a use for which they are not designed or furnished, or subjects them t.o. a strain beyond their capacity to bear, and is injured in consequence, the employer, in the absence of special circumstances, is not liable. Standard Distilling & Distributing Go. v. Karris, 75 Neb. 480.
    2. Instructions. The statute requiring instructions to the jury to be in writing has no application to a mandatory direction to return a verdict in favor of one of the parties to the litigation.
    3. Directing' Verdict. On the facts stated, held that the trial court properly directed a verdict for the defendant.
    Appeal from the district court for Lancaster county: Edward P. Holmes, Judge.
    
      Affirmed.
    
    
      Field, Ricketts & Ricketts, for appellant.
    
      Halleck F. Rose and W. B. Gomstock, contra.
    
   Albert, C.

This is an appeal from a judgment in favor of the defendant in an action for personal injuries. The petition so far as is material is as follows: “The plaintiff complains of the defendant, for that on and prior to the 8th day of October, 1903, the defendant was a corporation duly organized under and by virtue of the laws of the state of Nebraska, and was extensively engaged in the printing, publication and circulation of certain newspapers, with its place of business in the building at the southwest corner of Thirteenth and N streets in the city of Lincoln, Nebraska; that the papers, so printed, published and circulated by the defendant were stacked and made ready for transfer to the postoffice on the third floor of the building occupied by it, and to facilitate the delivery of its sacks of mail from the third floor of said building to wagons on the street, it had theretofore caused to be constructed an iron chute attached to the south wall of its publishing house, and extending from the third floor thereof over and across the sidewalk to the pavement on Thirteenth street of said city, so that sacks of mail placed in the chute would be carried by gravity down the inclining chute to wagons on the street; that said chute was provided with a hinge or joint at the lot line, whereby that part of the chute that extended across and over the sidewalk space on the east side of the building, when not in use, might, by means of an apparatus operated by a rope, pulley and heavy iron weight, be turned over and doubled back on that part of the chute fastened to the building, and when loading mail, might be extended across and over the sidewalk to wagons in the street; that on the 8th day of October, 1903, the plaintiff proceeded to the defendant’s place of business at Thirteenth and N streets in the city of Lincoln to transfer its sacks of mail to the postoffice, pursuant to orders from the defendant to plaintiff’s employer. When plaintiff arrived at defendant’s place of business, the sidewalk extension of the iron chute was doubled back, and before the plaintiff could receive the sacks of mail into his wagon from the third floor of defendant’s building, it was necessary to extend the iron chute over and across the sidewalk by means of the apparatus provided by the defendant for such purpose. While the plaintiff was extending said chute across the sidewalk by means of the apparatus provided therefor by the defendant, and had his weight on the rope, and without any fault or negligence on his part, the apparatus provided by the defendant for raising and extending said chute gave way, precipitating the heavy iron weight used in connection therewith upon the plaintiff, breaking the bone of his right leg between the knee and the hip so that it protruded through the flesh, thereby seriously and permanently injuring tbe plaintiff. * * * Plaintiff further alleges that the apparatus by which said iron chute carrying defendant’s mail sacks to the street was doubled back or extended over and across the sidewalk was carelessly, negligently and insecurely constructed by the defendant, and was made of defective and unsuitable material for the purposes for which it was used, and the defendant carelessly, negligently and unnecessarily suspended said heavy iron weight, which fell upon plaintiff, directly above where plaintiff was compelled to stand to operate the apparatus in extending the chute over and across the sidewalk; that the giving way of said apparatus and the precipitation of said heavy weight upon plaintiff, resulting in his injury as hereinbefore alleged, was directly caused by the defective material used, and the negligent, careless and insecure manner in which defendant constructed said apparatus and suspended said heavy weight.”

The answer charges that the plaintiff, in attempting to operate the chute at the time of the accident, was a mere volunteer or intermeddler, and was assisted by another intermeddler, without the knowledge or consent of the plaintiff; that they applied greater force to the rope used to operate the chute than the appliances provided for that purpose were intended to bear, and that the accident resulted in consequence thereof, and from no other cause. The reply is a general denial. At the close of the trial the court sustained a motion to direct a verdict for the defendant, and the correctness of that ruling is the principal question now presented by the record.

It is conclusively established that at the time of the accident the'plaintiff was in the employ of a transfer company, which was under contract with the defendant to carry the printed -matter ready for the mails from the de fendant’s place of business to the postoffice. The amount of this matter was so great as to require drays to carry it. It was no part of the transfer company’s duty under the contract to operate the chute described in the petition. But, while the chute was generally operated by the defendant’s employees, it was a common practice, in case of delay on tbeir part to do so, for tbe employees of tbe transfer company, after placing tbeir wagons in position to be loaded, to raise and lower tbe cbute to a position to deliver tbe mailing matter on tbe drays at tbe edge of tbe sidewalk. Tbe plaintiff had done this on several occasions previous to tbe accident.. On tbe day of tbe accident, tbe defendant notified tbe transfer company that it bad some matter ready for delivery to tbe postoffice, and tbe plaintiff was sent in charge of a wagon to receive it. In this instance tbe matter was not such as could be loaded by means of tbe cbute, but tbe plaintiff was not aware of that fact. He drove bis wagon to defendant’s place of business and placed it in position to be loaded by means of the cbute; tbe defendant’s employees were not aware of bis arrival. He then undertook to extend tbe movable section of tbe cbute across tbe sidewalk to bis wagon. Tbe movable section of the chute weighed about 200 pounds. It was connected with tbe other section by a joint, and, when not in use, was folded back upon it, along tbe side of tbe building. In order to raise and lower it a rope passed through a pulley overhead, one end of which was attached to tbe free end of tbe movable section, tbe other to a weight of 50 or 60 pounds used as a counterbalance. A rope hung from this weight to tbe ground, whereby one standing on tbe ground could raise and lower the movable section.. Another rope, was also used to overcome the “dead center” when tbe section was raised to tbe perpendicular. As tbe appliances were arranged tbe force necessary to apply to tbe rope to raise tbe cbute, in addition to tbe counterbalance, was less than 50 pounds. When tbe plaintiff undertook to raise tbe cbute at tbe time of tbe accident it bad become fastened in some way and be was unable to raise it. A bystander volunteered to assist him, and joined him in pulling on tbe rope which extended downward from the counterbalance. The pulley broke and tbe counterweight fell, striking tbe plaintiff, who bad fallen to tbe ground, breaking bis leg.

Tbe plaintiff contends that from the foregoing state of facts, in which we have tried to include every fact favorable to him which the evidence proves or tends to establish, two propositions are deducible: (1) That at the time of the accident he stood in the relation of employee to the defendant, and in attempting to operate the chute was acting within the scope of his employment; (2) that his injury was the proximate result of a negligent omission on the part of the defendant to furnish reasonably safe appliances for the operation of the chute. A large part of the argument on either side is directed to the first proposition. But we do not deem it necessary to go into that question because, were it resolved in favor of the plaintiff, it seems clear to us the plaintiff must still fail. Assuming that the plaintiff’s relation to the defendant was that of an employee, then it was undoubtedly the duty of the defendant to see that the appliances furnished him for use in his employment were reasonably safe for the use for which they were furnished. But it is equally true that an employer is not liable for injuries to an employee caused by the unauthorized or improper use of appliances, and that the latter is bound to exercise reasonable care to protect himself from injury. 20 Am. & Eng. Ency. Law (2d ed.), pp. 134-141, and notes. In this case the pulley and its connections were furnished to bear the strain necessary to overcome a weight of about 100 pounds., Owing to the counterweight, a force of 50 pounds applied to the rope hanging from the counterweight would raise the movable section of the chute. The mechanism was simple, and hung in plain sight. The plaintiff was acquainted with it. In view of these facts, when he, a man weighing over 175 pounds, was unable by his own strength to raise the chute, he must have known as a reasonable person that the ropes had fouled or for some other reason the appliance was not in proper working order, and that the combined strength of himself and another man exerted on the rope would subject the pulley and its fastenings to a greater strain than they were calculated to bear. He was in a position of obvious danger, with the weight which fell on his leg suspended overhead. While it is the duty, ordinarily, of an employer to use reasonable care that the tools and appliances which he furnishes his employees are reasonably safe, the employees are not relieved from the exercise of their own judgment in the use of such tools and appliances, and when they put such tools and appliances to a use for which they are not intended, or subject them to a strain beyond their capacity to bear, and are injured in consequence, ordinarily, no liability attaches to the employer. Standard Distilling & Distributing Co. v. Harris, 75 Neb. 480. In this case, the rope and pulley were furnished to overcome a definite weight. The plaintiff, instead of confining their use to that end, blindly undertook to use them to overcome some unknown force or obstruction interfering with the operation of the chute, and subjected them to a strain many times greater than was required to serve the purpose for Avhich they were furnished. In doing so he acted under no command, but purely on his own volition, and his injury resulted, not from the omission of the defendant to provide a reasonably safe appliance for operating the chute, but from his misuse of the appliance furnished, and his own omission to make reasonable use of his own faculties to guard against injury.

The plaintiff contends that the judgment must be reversed because the direction to return a verdict for the defendant was given orally, and in support o'f this contention, invokes the statute requiring all instructions to be in writing, unless such requirement be waived. The statute has reference to instructions proper, that is, instructions given to guide the jury in their deliberations when some issue of fact is submitted for their determination. Where there is no such issue to submit, a mere mandatory direction, which is in no proper sense an instruction, is all that is required, and like other rulings of the court may be given orally.

Complaint is also made of the exclusion of certain evidence tending to sustain plaintiff’s theory that at the time of tbe injury be stood in tbe relation of employee to tbe defendant. As we have seen, that relationship may be assumed, and still tbe record would necessitate an affirmance of the judgment, hence, further notice of this assignment is unnecessary..

What has been said disposes, we think, of all tbe assignments, and we recommend that tbe judgment of tbe district court be affirmed.

Duffie and Jackson, CC., concur.

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

Affirmed.  