103 Minn. 345 | Minn. | 1908
The defendant at the times herein stated was a manufacturer of coke at West Duluth, where it had its plant, a part of which was a coal bin, in which fine coal to supply its ovens was kept. On January 19, 1906, the plaintiff’s intestate, an employee of the defendant, while he was working in the bin lost his life by being smothered by a large mass of coal therein. This action was brought in the district' court in the county of St. Louis to recover damages on account of his death, on the ground that the defendant negligently ordered the deceased to work in a dang-erous place without properly instructing and warning him as to the risks and dangers connected therewith. The answer put in issue the alleged negligence of the defendant. Verdict for the plaintiff for $5,000. The defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial.
1. The defendant claims there was no evidence in the case warranting a verdict for the plaintiff. Evidence was received on the trial tending to establish these facts:
The bin was thirty by thirty six 'feet at the top, thirty feet deep, and would hold some seven hundred tons of coal. In the bottom of the bin there were spouts which could be opened by levers to let the coal run into small cars by means of which it was carried to the ovens. There was a ladder on the inside of the bin, consisting of pieces of inch boards nailed to- 2x4’s, which were fastened to the side of the bin. It was dark in the bin. The coal run into the bin was very fine, and was liable to be more or less damp, become sticky, clog, and form a crust, so that when the coal below the mass held in place by the crust
According to the testimony of the foreman, the deceased went down the ladder into the bin first, called for a lantern, which he hung on a nail placed in the wall of the bin, and then, holding onto a rung of the ladder with his left hand, with his left foot on a rung and his right foot on the coal, he commenced pounding the crust with the bar in his right hand; but the crust did not break. He then let go his hold on the rung, and with both hands, still keeping one foot on the rung and the other on the coal, he continued his efforts to break the crust, when the foreman said to him: “Ben, donjt get out there too far. This thing is undermined. You are liable to go down any time.” The foreman further testified that “Mr. Balder didn’t pay no attention to what I said. He continued breaking down the coal and resting one foot on the ladder, and he poked there with this bar for probably two minutes, when the coal gave away with him. Having one foot on the ladder and other on the coal, the foot that he had
It is unnecessary to discuss the evidence in detail, for we are clearly of the opinion that it was sufficient to sustain the verdict. The place into which the deceased was taken by the defendant’s representative, without any warning or instruction, was in fact one of great peril to one who had no knowledge of its concealed dangers. The negligence of the defendant in not giving such warning is well established by the evidence. The serious question is whether the deceased was guilty of contributory negligence and assumed the risk. He received no warning until just before he was engulfed in the falling coal. It cannot be said, as a matter of law, that the warning was sufficient or timely given. It is far from conclusive that the deceased heard the caution to which the foreman testified, who only testified in this respect that he believed the deceased could hear him, as he (the foreman) was right beside him, but he made no reply. Even if the deceased did hear what the foreman said, it was, nevertheless, a question for the jury whether he was guilty of contributory negligence, and whether he' knew and also appreciated the dangers to which he was exposed. It is to be noted in this connection that the warning was to the effect not to go out too far, and that the deceased did not go out any further, but kept his position with one foot on the ladder.
3. It is urged that the damages are excessive, the jury having given the full amount allowed by the statute. We are not impressed with the justice of this claim,\ in view of the age, vigor, and character of the deceased, and the fact that the beneficiaries of the verdict are his young widow and infant child, and hold that the damages awarded are not excessive.
3. It is urged that the defendant was entitled to a new trial on account of the alleged misconduct of plaintiff’s counsel. Whether a new trial should be granted on this ground was a question addressed to the discretion of the trial court. The discretion was properly exercised.
5. Errors are also assigned as to the court’s instructions to the jury. The charge of the court, considered as a whole, was fair and correct. The defendant’s requested instruction relating to the assumption of the risk by the plaintiff was properly refused, because all that the defendant was entitled to have said on the subject was substantially covered by the general charge. Besides, the request, if given, would have been liable to mislead the jury; for it did not directly state that the deceased must have known and appreciated the danger in order to charge him with an assumption of the risks.
Order affirmed.