129 Minn. 432 | Minn. | 1915
This action was brought to recover for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. Plaintiff had a verdict; defendant moved for judgment notwithstanding the verdict (not asking for a new trial), which was denied. Judgment was subsequently rendered on the verdict and defendant appealed.
The only question presented is whether the evidence on either ground of the negligence alleged in the complaint shows a right of recovery. Not having asked for a new trial, it is unnecessary to consider the assignments of error challenging the rulings of the court on the admission or exclusion of evidence or the instructions or refusals to instruct the jury, save only the request for a directed verdict in defendant’s favor. Helmer v. Shevlin-Mathieu Lumber Co. 129 Minn. 25, 151 N. W. 421; Northwestern Marble & Tile Co. v. Williams, 128 Minn. 514, 151 N. W. 419.
The facts are as follows:
Defendant owns and operates a dam and power plant in the Mississippi river at the falls of St. Anthony for the generation of electricity. The building in which the machinery is located is situated on.the east bank and out into the bed of the river. Immediately adjoining the building is a sluiceway for the passage of logs down the stream. The dam at this point is about 14 feet high and a part of the water there accumulated passes through and moves the turbine wheels in the power house, and a part thereof flows out through the sluiceway. The water is deep and flows in a powerful, steady and swift current, carrying with it any and all objects falling into the same. To the north of the power house and attached thereto is a
Plaintiff’s intestate was in the employ of defendant at this plant, and met his death while engaged on the boom in guiding logs to the sluiceway. In attempting to prevent a log from passing under the boom and to keep it from floating into the space fronting the power house, in some way, probably by his failure to know or understand how properly to handle the pike with which he was working, he was caused to fall into the water at the mouth of the sluiceway and was carried into the same and to his death.
The complaint fairly construed charges negligence in two respects: (1) The alleged failure of defendant to comply with chapter 288, p. 403, Laws 1911, requiring dangerous places in and about factories, mills, workshops and engineering works, to be fenced, guarded or otherwise protected; and (2) the failure of defendant to warn and instruct decedent, who was without experience and not familiar with the dangers and risks incident to his work. The first ground of negligence so alleged was the only one submitted to the jury; the court refused to submit the second, but for what reason does not appear from the record. It may be conceded, in harmony with de
It appears from the record before us that the work in guiding logs into the sluiceway, from the position of workmen upon the boom, is dangerous and hazardous to one not familiar with the manner of its performance and who is without practical experience therein. Decedent was a little past 20 years of age and wholly inexperienced in this kind of work; he was a common laborer and had recently come from his home in Austria-Hungary, and was unable to speak our language, and the employees of defendant in charge of the work could not speak his language. He was given employment by defendant, but was given no instructions or- warning of the dangers incident to working upon the boom, and the evidence will justify the conclusion that his death resulted from his lack of experience and lack of familiarity with the dangerous character of that work. The fact that the work was dangerous, which he did not know or appreciate, imposed upon defendant the obligation to instruct and' warn him, but so far as the record discloses no such warnings or instructions were given. He had been in defendant’s service about two weeks at the time of his death, during the greater part of which he was engaged at the platform raking chips and bark from the gratings, and only occasionally had he been sent to work on the boom. It was a sharply contested question on the trial whether decedent was required or expected to work on the boom at all, defendant contending that he was employed splely for removing bark from the grating, which was attended with no particular danger or risk of injury. Whether decedent’s employment was so limited, was made by the evidence an issue of fact for the jury to determine. So also was the question of assumption of risk for the jury.
Judgment affirmed.
On June 11, 1915, the following opinion was filed:
Per Curiam.
It is ordered that defendant’s application for a rehearing be and the same is hereby denied. The request that the order of this court be so amended as to remand the cause without prejudice to the right of defendant to move for a new trial is also denied. An application