103 Minn. 257 | Minn. | 1908
Lead Opinion
(after stating the facts as above).
1. Defendant’s first contention is this: The plunger in motion was-in plain sight, about three feet away from the place at which plaintiff'
The question is a particularly close one, and we are not without grave doubt. For the purposes of this appeal, however, it appears that the defendant had broken his express promise to the plaintiff that he would advise plaintiff when the elevator was ready to be started. Plaintiff, fully aware of the danger, had a right to rely on that promise. The elementary principle that an employee is not bound to anticipate negligence on the part of the employer is particularly applicable here. The employer’s wrong consisted, not merely in the disobedience of the ordinary rules of law which require the master to exercise reasonable care in providing a safe place for the servant’s work, but also in his failure to comply with his clear and express promise with reference to known danger. Regal effect must be given to such failure. Floan v. Chicago, M. & St. P. Ry. Co., 101 Minn. 113, 111 N. W. 957. This did not, it is true, exonerate the plaintiff in case he failed to exercise such cautiop as an ordinarily prudent man would have used under such circumstances. When the elevator wo'uld be below a given floor, a cluster of five ropes, each about an inch in diameter, would be in sight; when it would be above that floor, in the shaft would be seen the plunger, eight inches in diameter. Under all the circumstances, one looking into the shaft would have perceived the presence of elongated steel. Inspection would have revealed the difference. A brief course of natural reasoning would have made it clear that the elevator must have ascended. There was, however, a similarity be-, tween the cluster of ropes and the plunger. The jury in effect found the resemblance to havé been such that plaintiff, engrossed as he was in his work, was not, in view of defendant’s promise to warn, negligent in failing to know that the elevator must have gone above him. Its conclusions were sustained by the trial court.
The authorities on this subject cited by defendant have been examined. They announce familiar general principles. The facts in no one of them are so similar to those presented by the case at bar as to make it desirable to discuss them in detail. Rink v. Lowry, 38 Ind. App. 132, 77 N. E. 967, is not controlling, but suggestive. There the plaintiff, employed by a telephone company, entered an elevator shaft in defendant’s building to repair a telephone. The operator of the elevator assured him that it would not be moved while he was- in the shaft. None the less the elevator was moved and plaintiff was injured. Comstock, P. J., said (p. 141): “Appellant cites a number of cases to the effect that the law places a duty upon every person,- in respect to his relation with others, to exercise his faculties for his own safety, and that he cannot relieve himself of the duty by an agreement with another to perform it for him. As a general proposition this is correct; but whether a party has been guilty of contributory negligence must depend upon the particular facts of each case. The promises and agreements under which hazard is assumed, the condition existing making effective' or ineffective the use of the natural senses, 'are to be taken into account in determining the question of negligence. * * * The plaintiff was at work in a proper place, not necessarily dangerous if the promise of the appellant, made through his servants, had been kept, and was injured by the negligence of appellant and without contributory negligencé on his part, as found by the jury. The judgment is fairly justified by the law and the evidence.”
Plaintiff’s testimony tended to show these injuries: He sustained a compound, comminuted fracture of the right arm at the elbow joint. The bones were crushed and the flesh lacerated. It was “just as if some one had grabbed him up here (on the arm) and pulled this whole substance right down over the hand” — “the same as you would take a long glove this way (indicating) and strip it off right down over the hand.” There was a wound three inches long on the shoulder. Upon one side of the head there was a scalp wound six or eight inches long, and on the other side one four or five inches in length. “The scalp was torn off.” Subsequently the arm was amputatéd two inches below the elbow. The scalp was sewed, and had healed. It is to be noted that here, as in most of the cases to which reference will hereafter be made, the injury consisted of morq than the loss of the arm. With respect to that injury, one element of damage existing in nature and clearly recognized in the authorities is the physical pain and suffering experienced. Another is the decrease in earning capacity. 13 Cyc. 127. These are not, however, the only elements.
In Hickinbottom v. Delaware, 15 N. Y. St. 11, affirming the award of $25,000 for the loss of a right arm, the court said: “Science, coupled with marvelous mechanical skill, has not yet supplied any proximate substitute for that member of the body in its various uses and powers. * * * There are other elements which enter into compensation for the destruction of an arm than pain and suffering and loss of- power to earn money. The great deprivation of the capacity which follows to do many things essential to the common comforts of life, preparing food to eat, dressing, lifting, carrying; the numerous uses of the arm for assistance to family or self, for pleasure, or from necessity as a means of defense, aside from the inexpressible sense of the want of that member; the deformity occasioned by its absence ; and the depressing effect of the consciousness of a crippled condition —-all these are a part of the suffering. These are the consequences of the injury inflicted, and, if the test were what any human being in full health would take for an arm, the sum named would be considered absurd.”
For the loss of an arm the following amounts have been held not excessive: $9,500, Knapp v. Sioux City, 71 Iowa, 41, 32 N. W. 18 (arm permanently disabled, but not amputated); $10,000, Ketchum v. Texas, 38 La. An. 777; Robinson v. Western, 48 Cal. 409; Baltzer v. Chicago, 89 Wis. 257, 60 N. W. 716; Chicago v. Rembarz, 51 Ill. App. 543; $10,885.62, Sesselmann v. Metropolitan, 76 App. Div. 336, 78 N. Y. Supp. 482 (loss of hand); $11,000, Baird v. New York Central, 172 N. Y. 637, 65 N. E. 1113; Galveston v. Courtney, 30 Tex. Civ. App. 544, 71 S. W. 307; $11,500, Southern Kansas v. Sage (Tex. Civ. App.) 80 S. W. 1038; $12,000, Lafferty v. Third Avenue, 176 N. Y. 594, 68 N. E. 1118; North Chicago v. Dudgeon, 83 Ill. App. 528; $12,500, Rodney v. St. Louis, 127 Mo. 676, 28 S. W. 887, 30 S. W. 150; $13,000, Moran v. Eastern Ry. of Minn., 48 Minn. 46, 50 N. W. 930; $15,000, De Wardener v. Metropolitan, 1 App. Div. 240, 37 N. Y. Supp. 133; Illinois Central v. O’Connor, 90 Ill. App. 142; $18,000, Musser v. Lancaster, 15 Pa. Co. Ct. 430; $25,000, Hickinbottom v. Delaware, supra.
Affirmed.
Dissenting Opinion
(dissenting).
The opinion concedes that the promise of the employer did not relieve the plaintiff from the duty of exercising such care for his own safety as an ordinarily prudent man would exercise under the circumstances. The elevator shaft was perfectly lighted, and the plunger, a polished steel rod eight inches in diameter, extending from the bottom of the elevator car down to and into the ground, was visible about three feet in front of the plaintiff’s eyes. There was nothing in the way. He testified that he knew that when this plunger was visible the car was above him. He also knew that the car was below when he left his work. When he returned the plunger was there ■ immediately before him, and the simplest exercise of the sense of sight would have prevented the deplorable accident. The wire ropes, which, when present, indicated that the car was below, did not in the least ■resemble the plunger. The plaintiff testified that he understood the construction of the car and its appliances, and that he knew and appreciated the fact that he was working under very dangerous conditions; and yet he did not exercise the slightest care for his own safety.
I therefore dissent.
