210 N.W. 866 | Minn. | 1926
Four points are presented for consideration: (1) Was it within the power of the court to set aside the order of January 29th and enter the order from which the appeal was taken? (2) Did the evidence justify the jury in finding that appellant was negligent in the particulars specified in the complaint? (3) Was Duffy guilty of contributory negligence? (4) Is the verdict excessive?
1. Duffy had an unliquidated claim for damages which became liquidated when the verdict was returned. The verdict was a valuable property right. When Duffy died it became an asset of his estate and passed to his personal representative the same as though it had been reduced to judgment. Cooper v. St. Paul City Ry. Co.
104 Am. St. 665; Clay v. C.M. St. P. Ry. Co.
Section 9283, G.S. 1923, authorizes the court, for good cause shown, to set aside its orders. But independently of the statute a court of general jurisdiction has authority to do so when satisfied that such action is proper. 34 C.J. 252; Crosby v. Farmer,
Conceding the validity of the order of January 30th for the purposes of this discussion and keeping in mind the fact that respondent could not have appealed from that portion of the order which granted the appellant a new trial, can it be said that the court abused its discretion in setting the order aside? If Duffy had been alive when the order was made, it might be argued that the court had no reason to vacate it, but under the circumstances the vacation of the order was not an arbitrary or unreasonable exercise of judicial power. If the reargument satisfied the trial judge that his first conclusion was wrong, he had a right to change his mind. Scheurer v. G.N. Ry. Co.
2. The facts set forth in the complaint on which the charge of negligence is based are as follows: The head of the stairway leading to the basement from the first floor was in a dark portion of the store. Shovels, forks and scythes were placed along the wall near the opening in the floor. There was no gate at the head of the stairway. Duffy wanted a pitchfork, and appellant directed him to pick out such as he wanted. While in the act of taking one from the wall he fell down the stairway and was injured.
The evidence shows that the store is 60 feet long, 23 feet wide and fronts west. The stairway is about 40 feet east of the front entrance and on the south side of the building. There are no windows on that side. There are large ones in the front of the building and some small ones in the north wall. There was no artificial light *139 at the head or foot of the stairway. The day of the accident was cloudy. When Duffy asked for a fork he was directed by the clerk who waited on him to help himself. When he reached out for one his foot slipped and he fell through the opening in the floor. In falling he caught hold of a scythe and cut his left hand severely. There was a steam radiator on the north side of the opening, a bolt case on the east side, and another bolt case and a drinking fountain on the west side. There were no other barriers to protect appellant's customers from falling through the opening. It is settled by our decisions that it is the duty of a shopkeeper to exercise ordinary care to keep his place of business in a safe condition for his customers. Dun. Dig. § 6987. Considering all the facts and circumstances, we think the jury might find that appellant had failed to exercise the requisite degree of care.
3. Appellant contends that Duffy was negligent because he failed to discover the stairway when he went to select a fork. Duffy's testimony runs as follows:
"Q. Did you notice how close you were to the top step?
A. I didn't.
Q. You were looking at the forks?
A. I was just looking, I never paid no attention to anything else.
Q. Did you look to see where you were going?
A. I never stirred out of my tracks.
Q. And when you turned around at the counter, did you look to see where you were going?
A. I never looked ahead of me at all, no sir, I did not."
Citing Johnson v. Ramberg,
A merchant who displays his goods at a place like this and who invites a customer to inspect the goods and make his own selection cannot reasonably expect the customer to bestow the same degree of attention to his surroundings as might be required under other circumstances. Ober v. The Golden Rule,
4. Duffy was cut by the scythe in such a manner as to cause a permanent stiffening of the left thumb. The use of the hand was substantially impaired. There was some expense for medical treatment. Duffy was a farmer and the injury to his hand interfered with his ability to do farm work. We think the verdict was not so excessive as to indicate passion or prejudice on the part of the jury.
Order affirmed.