97 Minn. 94 | Minn. | 1906
Lead Opinion
This action was brought by the plaintiff and appellant against the defendant and respondent to recover damages for personal injuries sustained by him while in defendant’s employ as a laborer in their sawmill on February 14, 1900. The jury rendered a verdict in favor of plaintiff, which on motion of the defendant was set aside. Judgment was entered in favor of the defendant notwithstanding the verdict, from which judgment this appeal was taken on March 8, 1905.
The facts which appeared in evidence in the trial court are briefly as follows: The plaintiff, a farmer boy twenty-two years old, without any previous experience in such work, was put to work by the defendant in a sawmill, on a sorter, piling lumber taken from the conveyor or sorter and piled on rollers. The conveyor carried lumber in lengths from four to thirty feet, from the saws on the second floor down to the first floor and on for a distance of fifty to one hundred feet, by means of moving chains, which moved about half as fast as an ordinary walk, to a platform or “sorter,” as it was commonly called. On each side of the conveyor was a set of rollers, about two feet above the floor, upon which the lumber was piled to be shoved on wagons. Between the roller table and sorter there was a space of six or seven feet in which the workmen walked in going with the lumber from the sorter to the piles on the rollers. There were usually ten to twelve men employed on the sorter, stationed on opposite sides thereof, each taking care of lumber bearing certain marks. When lumber came too fast for the plaintiff to take away, the man opposite to him would pile several pieces on top of each other on the conveyor, so that he could have it handy to carry to the rollers. On the night of the injury the man
There is practically no dispute as to the elementary principles ■of law applicable to this situation. There can be no question that under appropriate circumstances recovery may be had' by one injured through his employer’s negligence in failing to furnish a sufficient number of fellow servants, as in Peterson v. American Grass Twine Co., 90 Minn. 343, 96 N. W. 913.
In the instant case the failure to employ the usual number of helpers was not the proximate cause of the injury. In point of physical fact, it resulted in the subsequent order of the foreman to pile the boards in the aisles and in the consequent accumulation of the boards at a place therein. In point of law, it produced a condition ■of the injury. Counsel for plaintiff saj^s: “This pile, either by reason of the lumber moving in close proximity on the chains coming in contact with it or of its own weight, fell and injured the plaintiff.” The plaintiff, if he can recover at all, can succeed only upon the second ground of negligence set forth in his complaint, viz., that the foreman was negligent in ordering the plaintiff to throw boards ■on the floor. That order did not put the plaintiff in a position of immediate danger. It started him at a work in which he himself produced his own peril. That peril was as obvious as the certainty that
Judgment affirmed.
Dissenting Opinion
(dissenting).
The necessity of piling lumber in the aisle was caused by respondent company itself in withdrawing the workmen necessary to take the lumber from the conveyor in the ordinary and usual manner. Appellant did not create the condition, but was directed to resort to an unusual method of disposing of the lumber, which accumulated too fast for him to take care of. True, if the risk of continuing the employment, as directed, was obvious to a man of ordinary prudence, he assumed the risk by remaining and continuing in the work. I concede that if no orders had been given, and appellant had resorted to this method of his own accord, then he could not complain of the fact that he did not succeed in safely piling the lumber; but he was working under express orders to meet an emergency caused by the company itself, and all that was required of him, under the circumstances, if he assumed to carry out the order, was to use that degree of care required of a man of ordinary prudence. Whether he did, or not, exercise ordinary care depended upon his