125 Minn. 33 | Minn. | 1914
1. Defendant manufactures self-feeding bean and pea threshers. On August 8, 1910, it sold one of its outfits to Murphy & Hughes, in Wisconsin. The separator of this thresher looks much like the separator of an ordinary grain thresher and operates upon similar principles. It is fed at the front. The feed table stands four feet seven inches from the ground. Just back of the feed table is a raised hood or cap. Within this are two 'knife-cylinders with interlocking knives. Just back of this hood or cap and directly above the rear part of the cylinder is a removable board, nine inches wide, extending across the machine, resting upon bearings at the ends, and held in place by a cleat at each end. The board is removable to permit of access to the cylinders when they become clogged. The top of
2. There was no contractual relation between plaintiff and defendant. But it is well-settled that there may be liability for personal injury independent of any contractual relation. A duty with respect to instrumentalities delivered under contract may exist towards others than the contracting parties. One who manufactures and sells an article not ordinarily of a dangerous nature, which is calculated for use by others than the vendee, may be liable to a person not the vendee, who uses it in the usual course of business, for injuries due to defects which render the use of the article dangerous to life or limb. Schubert v. J. R. Clark Co. 49 Minn. 331, 51 N. W. 1103, 15 L.R.A. 818, 32 Am. St. 559; O’Brien v. American Bridge Co. 110 Minn. 364, 125 N. W. 1012, 32 L.R.A.(N.S.) 980, 136 Am. St. 503.
The conditions necessary to a recovery, as applied to this case, are as follows:
It must appear that the board was so defective as to be dangerous to life or limb. There was ample proof that it was defective. Several of defendant’s witnesses admitted it. One portion of the broken board, the longer end, was exhibited to the jury and to this court. The board was cross-grained and unfit for use in any place where it was required to bear a man’s weight. Its position, over a knife cylinder, was such that the consequence of a man’s breaking through was necessarily extremely dangerous. It must appear that the defendant knew of the defect when it sold the separator, or at least that it oiiafitioJaave-kumm-of it. Many cases hold that actual know! edge is necessary, and that the action is in effect one sounding in deceit, and not in negligence. ITeizer v. Kingsland & Douglass Mfg.
—It must appear that the breach of duty on the part of defendant was the proximate cause of the accident. Defendant contends that Murphy & Hughes, to whom the separator was sold, had knowledge of the defect before the accident, and that this knowledge on their part made the negligence their own, and broke the sequence of events necessary to make the negligence of the defendant the proximate cause. The jury found that Murphy & Hughes had no such knowledge. This finding is sustained by the evidence. Both Murphy and Hughes so testified. There is no direct evidence to the contrary. This board was very frequently taken up and had they examined the under side they would have observed the defect. But they were under no duty to examine it. The circumstances disclosed by the evidence do not compel a finding that Murphy & Hughes knew of the defect. We do not wish to be understood as holding that knowledge on the part of Murphy & Hughes would relieve defendant from liability^] Some cases so hold. Griffin v. Jackson, Light & Power Co. 128 Mich. 653, 87 N. W. 888, 55 L.R.A. 318, 92 Am. St. 496;
It must appear that the defect was concealed to such an extent that ordinary observation on the part of plaintiff would not discover it. Schubert v. J. R. Clark Co. 49 Minn. 331, 51 N. W. 1103, 15 L.R.A. 818, 32 Am. St. 559. This defect was concealed by paint so that a careful examination of it from the outside would not disclose it. Only by turning the board over could the defect be seen. To all intents and purposes it was a concealed defect.
It must appear that the board was intended for the purpose for which it was being used. The evidence is quite decisive that men necessarily stand and walk on top of these separators when not in. operation, in driving from place to place, and in cleaning out the cylinders. There is also ample evidence that one of the operators of the thresher was necessarily often on top of the machine when it was in operation, going upon every part of the top from end to end, adjusting belts, oiling the bearings, and watching the work of the men. This, however, is not enough.
It must appear that plaintiff was one of the class of persons by whom defendant contemplated the board would be used. Otherwise defendant would owe him no duty. Negligence presupposes a duty to exercise care toward the person complaining. If defendant owed plaintiff no duty of care, there was no negligence of which plaintiff could complain. O’Brien v. American Bridge Co. 110 Minn. 364, 125 N. W. 1012, 32 L.R.A.(N.S.) 980, 136 Am. St. 503. We are of the opinion that the evidence amply shows that the work that
We are of the opinion that by reason of the foregoing facts the question of defendant’s liability to plaintiff was one for the jury to determine.
3. Defendant assigns some errors in law. The court permitted plaintiff to give evidence that he was following a customary method of work at the time he was injured. This is assigned as error, the alleged ground of error being that plaintiff had not shown sufficient knowledge of the method of-operation of a bean and pea thresher to render him competent to testify on this subject. Plaintiff had never worked about a bean and pea thresher before. He had, however, worked for years about a grain thresher. We do not regard the admission of this evidence as reversible error. The qualification of the witness to testify in such a case is a matter which the trial judge must, in the exercise of a sound discretion, pass upon as a matter of fact, and his decision ought not to be reversed except in a very clear and strong case. Stevens v. City of Minneapolis, 42 Minn. 136, 43 N. W. 842; Meyers v. McAllister, 94 Minn. 510, 103 N. W. 564. In view of the similarity between grain threshers and bean and pea threshers, we do not consider that the court abused its discretion in receiving plaintiff’s testimony.
Defendant assigns as error the refusal of the court to give its request to instruct the jury that, if plaintiff was not one of the class of persons who were contemplated as likely to go upon the separator when in operation, he could not recover. The request was proper enough, but the court fully covered the subject by the instructions in fact given.
5. We are constrained to hold that the damages are excessive. In view of the age of plaintiff, 48 years old, we have decided, with some hesitation, that a new trial should be granted unless plaintiff shall, within 20 days after filing of a remittitur, consent to a reduction of the amount of the verdict to $12,000. In all other particulars the order appealed from is affirmed.
So ordered.