145 Minn. 64 | Minn. | 1920
Plaintiff, by his guardian ad litem, brings this action to recover damages for injuries which he claims to have sustained through the alleged negligence of defendant’s servants. Plaintiff recovered a verdict for $1,500. From an order denying its alternative motion for judgment notwithstanding the verdict or a new trial, defendant appeals.
Defendant was engaged in constructing a large public drainage ditch extending from the southeast quarter of section 26 in the town of West-hank, in Swift county, north across the east one-half of section 23. When the dredge with which the work was being done reached the northeast quarter of section 23, working north, it became necessary to remove the dipper, which operated in a way similar to an ordinary steam shovel, and replace it with a smaller one. The old dipper, which weighed two or three tons, was removed and placed on its edge about 200 feet from the ditch. Thereafter it became necessary for defendant to blast a large
On the afternoon of October 13, 1917, the plaintiff, Franz O. Erickson, IS years of age, and his brother Herbert, 12 years of age, left their home and started out to hunt skunks. They followed the south highway to the southeast comer of the section, then turned north on the road along the east side. Herbert left the highway and rambled across the field to the dipper. He went around to the open end thereof and found therein the box containing the caps. He opened the same, took two caps from it and returned to the road, giving one of them to his brother who attempted to scratch or open it with a wire. It exploded, injuring his thumb and forefinger so as to necessitate the amputation thereof. His left eye was also injured so as to permanently affect the sight.
It is contended on behalf of the appellant: (1) That the evidence shows that defendant was free from negligence in leaving the caps in the dipper; (2) that the plaintiff was guilty of contributory negligence which was the proximate cause of the injury; (3) that the damages allowed are excessive.
The testimony, when considered in connection with the attendant eir
In this' case the question whether the plaintiff was guilty of contributory negligence was fairly submitted to the jury and decided adversely to appellant’s contention. It is a well settled rule that, where a child of immature years is injured through the negligence of another, the child is bound to use such care as children of his age, capacity and intelligence are capable of exercising, and that the question whether he has done so or not Is for the jury, and we would not be justified, under the evidence, in disturbing the findings of the jury upon that question. It was under this rule that the trial court submitted the question of plaintiff’s negligence to the jury, in which we find no error. Pekin v. McMahon, 154 Ill. 141, 39 N. E. 484, 27 L.R.A. 206, 210, 45 Am. St. 114; Thompson, Negligence, §§ 308, 309; Kerr v. Forgue, 54 Ill. 482. Defendant urges very strongly that the age of the injured boy, under the circumstances, was conclusive against him upon the question of contributory negligence. We do not adopt this view. Two lads of the age of plaintiff might approach a given danger; one might be capable of carng for himself, while the other might fall an easy victim to the temptation. The capacity, intelligence, knowledge, experience and discretion of such children are always evidentiary circumstances, with reference to
The damages allowed are not so excessive as to justify this court in interfering with the verdict of the jury. The plaintiff was so injured as to necessitate the amputation of the thumb and index finger of his right hand, and there is evidence that his left eye was injured to the extent of 50 per cent. Affirmed.