112 Minn. 68 | Minn. | 1910
On November 6, 1908, the plaintiff was in the employ of the de
Thereupon the defendants made a motion for judgment notwitfistanding the verdict or for a new trial. The trial court made its order denying the motion for judgment and granting a new trial on the sole ground that the assessment of damages was not justified by the evidence, but was so excessive as to appear to have been given under the influence of passion and prejudice. The court was of the opinion that it was á case in which justice would be best served by granting a new trial, instead of providing for a reduction of the damages. The plaintiff appealed from the order granting a new trial, and the defendants from the whole order.
The first question to be considered is whether, as a matter of law, upon the whole evidence, the defendants were entitled to an instructed verdict in their favor. It is urged by their counsel that they were entitled to such instruction, because the evidence is conclusive that they were not negligent, but the plaintiff was. ■
The evidence relative to the alleged negligence of the defendants Avas conflicting in some material respects; but, taking the most favorable view of it for the plaintiffs, as we must for the purposes of this appeal, there was evidence tending to establish these facts: The crew, of whom the plaintiff was one, engaged in erecting the false Avork, consisted of ten men under the charge of a foreman, Frank Jenkins, who had sole control of the creAV and the work, with authority to direct them where to work and what to do, and to discharge them for disobedience of his orders; that on the morning of the accident the plaintiff and John McCrea, also one of the crew,
The jury were instructed that if they found from the evidence that the work was of the magnitude and character indicated, and the foreman was intrusted with the duty of giving proper orders, then his negligence in the premises, if any, would be that of defendants ; but, on the other hand, if the work was not of such character and magnitude, then the negligence of the foreman would not be that of defendants, and the verdict must be for them. It must be assumed that the jury, in returning a verdict for the plaintiff, followed the instructions of the trial judge; hence the question for our •decision is whether the evidentiary facts we have indicated justify the conclusion that the foreman was a vice principal.
The evidence was sufficient, if satisfactory to the jury, to establish the negligence of the foreman; for there was evidence tending to show that he ordered McCrea from his position at the rope and the plaintiff to get the auger in the chair without warning him that it had become a place of extreme peril by sending away the man who was at the rope which held the chair in mid-air. We are of the •opinion that the evidence was sufficient to sustain a finding and conclusion that the foreman in giving the orders was a vice principal, and therefore the question of the negligence of the defendants was for the jury. Carlson v. N. W. Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914; Abel v. Butler-Ryan Co., 66 Minn. 16, 68 N. W. 205; Holman v. Kempe, 70 Minn. 422, 73 N. W. 186; Dizonno v. Great Northern Ry. Co., 103 Minn. 120, 114 N. W. 736; Fitzgerald v. International Flax Twine Co., 104 Minn. 138, 116 N. W. 475; Raitila v. Consumers Ore Co., 107 Minn. 91, 119 N. W. 490; Anderson v. Pittsburgh Coal Co., 108 Minn. 455, 122 N. W. 794.
The defendants further contend that the plaintiff was guilty of contributory negligence as a matter of law in failing to look up to ascertain if McCrea was there, in failing to holloa or call to him to ascertain if he was there, in failing to take hold of the drop in the line, together with the line attached to the chair, instead of
This brings us to the plaintiff’s, cross-appeal. His counsel urges, in this connection, that the evidence as to the extent of plaintiff’s injury so fully and completely sustains the award of damages that it was reversible error for the court to grant the defendants’ motion for a new trial on the ground of excessive damages, but, if this court should hold otherwise, that it modify the order granting the new trial by conditionally reducing the verdict to such sum as the court deems just and fair. The trial court considered the question of reducing the amount of the verdict, and concluded that justice would best be served by granting a new trial. In view of the evidence relevant to the primary issues, and also the evidence as to plaintiff’s injuries, we are of the opinion that the trial court did not abuse its discretion in refusing to reduce the verdict, nor in granting a new trial on the ground that the damages were excessive. Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 L.R.A.(N.S.) 439, 111 Am St. 462; Goss v. Goss, 102 Minn. 346, 113 N. W. 690.
Order affirmed on both appeals.