45 Minn. 471 | Minn. | 1891
These two actions are for the recovery by a father (Patrick) and by his minor son (Thomas) of damages for an injury suffered by the son while engaged as a servant of the defendant in
The cases show no cause of action, unless it be negligence on the part of the defendant in respect to the condition of the side-set. It does not appear that Torkleson was not a competent, skilful workman; and even if, on this occasion, he was negligent, that would not justify a recovery. One of the ordinary risks incident to such service is that of the negligence of fellow-servants, and this risk a servant takes upon himself as incident to his service, even though he be a minor. King v. Boston & Worcester R. Co., 9 Cush. 112; Curran v. Merchants’ Mfg. Co., 130 Mass. 374; Brown v. Maxwell, 6 Hill,
The evidence tended to show that the head of this side-set had become much worn and battered, the pounded surface having become rounded over and a ragged edge formed; and that pieces of the metal were more likely to be broken from it than would be the case if it were not in that condition, although this is liable also to occur even with a tool not thus worn. This condition of the tool was the ordinary result of use. The uncontradicted evidence showed that the defendant kept a tool-repairer in the shops, whose business it was to repair the tools; that the defendant kept a full supply of tools of this kind in a closet and scattered about the shop; that when a workman was to use a tool he would get it for himself, selecting such as he required; and that, when a workman found that a tool needed to be repaired, he would take it to the tool-repairer for that purpose. There was nothing to show that in selecting tools for use the workmen had not opportunity to act deliberately, and to select such as might be fit for use in the work to be done.
Under the circumstances here presented, we are of the opinion that the recovery cannot be sustained, unless the minority of Thomas Hefferen affects the result. For the present we will disregard that feature of the case, and consider it as it would have been if he had been of full age. The defect was as much the ordinary and natural result of the use of the tool as the dulling of the cutting edge of it would be. The defect, and whatever risk there may have been, were perfectly apparent; and if a workman should of his own choice, and unnecessarily, use a tool thus plainly defective, when others were provided for his use, he is not absolved from the consequences of his own choice. It cannot be said to be the duty of a master, under ordinary circumstances, who provides and keeps proper tools for the use of his servants, to see to it that all such as from use become obviously unfit for
It may be said that this servant who was injured did not select this tool for use, but that he found it in the possession of Torkleson when he went to work with him. That would not affect the result. The plaintiff cannot charge the master with responsibility for any negligence of which Torkleson may have been guilty. But the fact that the plaintiff found that Torkleson had taken an unfit tool for the work would not excuse him if he knew the defect. He was not obliged to use such a tool merely because Torkleson had taken it for use.
Upon the grounds above stated it is considered that the cases did not justify the verdicts.
It is urged that the sufficiency of the evidence should not be considered, because there were no motions for new trials; but the court below passed upon the question when it refused motions to direct verdicts for the defendant.
Judgments reversed, and new trials granted.
Note. A motion for a reargument of this case was denied April 9, 1891.
Upon the taxation of appellant’s bill of costs in this court, the respondent objected to the item of $59.56, being “amount paid court reporter for copy of testimony,” on the ground that if taxable at all, it should be taxed in the district court, not being a disbursement incurred in this court, or in perfecting the appeal; and also objected to the item of $145 for printing the paper-book as excessive, greater than the legal charge, more than was actually paid by appellant, and because “said paper-book is needlessly long and prolix, and said sum was greater than was necessary for printing the same.” The objections were overruled by the clerk, and on appeal from his taxation the following opinion was filed April 21,1891:
On this appeal from the clerk’s taxation of costs the objection that a greater sum was paid for the pointing of the paper-book than was necessary cannot be considered, in the absence