104 Minn. 190 | Minn. | 1908
This is an appeal from an order denying the defendant’s motion for judgment notwithstanding the verdict or for a new trial. The injuries to the respondent are alleged to have been occasioned by the negligence of the defendant in furnishing him with a defective-plumber’s furnace. On October 4, 1905, the respondent, Lehman, was employed as a journeyman plumber by the appellant, the Dwyer Plumbing & Heating Company, upon a building in process of construction in the city of St. Paul. He was assisted in his work by a helper named Wheeler, who was also in the employ of the appellant company. .On that day Lehman was using a plumber’s furnace which proved defective, and he instructed Wheeler to turn it into the shop and to get a good furnace. The furnaces belonging to the appellant and furnished by it to its employees were kept in a toolroom in the care and custody of one Moncrief, its stock clerk, whose duty it
This furnace was so constructed that compressed air and gasolene were combined to produce a flame. It consisted of a reservoir of about one gallon capacity, at one side of which was a cock valve con
The case of the plaintiff rested upon his ability to prove that the air valve, or, as it is called in the evidence, the “pet cock,” was defective at the time of the accident and at the time when it was delivered to Wheeler by the stock clerk. The complaint alleges that the negligence of the defendant consisted in furnishing and supplying “to this plaintiff a certain gasolene furnace of the general type above described, for his use on said work, which was in an advanced state of nonrepair, worn out, defective, dirty, clogged, unfit and unsafe for use under the circumstances.” It is also alleged that this “unrepaired, worn, defective, dirty, clogged, unfit and unsafe condition was not patent to casual examination, and could not be discovered by an ordinary inspection or examination.” Stripped of its verbiage, the complaint charges the defendant with negligently furnishing the plaintiff with a plumber’s furnace which was in a defective condition, which condition was not discoverable by ordinary examination. It was the duty of the employer to use reasonable care to see that the employee was furnished with a reasonably safe furnace. This fur
The burden rested upon the plaintiff to prove that the pet cock was defective and that the defect caused the explosion. He was not bound to prove this by direct evidence,, yet he was required to produce evidence which furnished a reasonable basis for the conclusion to which he desired the court and the jury to arrive. A verdict cannot rest upon mere probabilities, conjecture, and speculation. There must be some facts or circumstances in the evidence from which it may reasonably be inferred that the defendant was negligent as charged. The jury cannot be allowed to speculate, or conjecture, or draw inferences, unless there is some reasonable basis therefor in the evidence. There must be something in the evidence which renders that ■conclusion of negligence.more reasonable than any other conclusion which would be consistent with the absence of negligence on the part of the defendant. Koslowski v. Thayer, 66 Minn. 150, 68 N. W. 973; Minneapolis Sash & Door Co. v. Great Northern Ry. Co., 83 Minn. 370, 86 N. W. 451; Truax v. Minneapolis, St. P. & S. S. M. Ry. Co., 89 Minn. 143, 94 N. W. 440; Ulseth v. Crookston Lumber Co., 97 Minn. 178, 106 N. W. 307.
Tested by these principles, we are satisfied that the evidence in this record is entirely insufficient to warrant the conclusion that, the pet cock was defective. The doctrine of “res ipsa loquitur” is not applicable upon the conceded facts. Where an instrument is under the exclusive control of the defendant, and is of such a character that the accident could not have happened if the instrument had been in good condition, the fact that the accident occurred has sufficient probative force to make a prima facie case of negligence. But where the instrument was
There is nothing in the evidence which even tends to prove that the pet cock was out of order at the time of the accident, unless it is the fact that the accident occurred. The furnace had been in the possession of Wheeler, or in the basement of the building where he left it, during the greater part of the day. In the absence of any showing to the contrary, the fact that it was taken from the room where only furnaces in good repair were supposed to be kept has some probative value. An examination was made by Moncrief to see whether the reservoir contained gasolene. Wheeler handled the pet cock when he prepared the furnace for work, without discovering any defects. The explosion, which must have been a severe one, may have had some effect upon the valve. The furnace was thrown from a building through a window, and. struck upon the ground, where it remained until the morning after the fire. Wheeler testified that when he found it there the next morning the valve was very loose and “wobbly,” and could be opened by striking upon the side of the reservoir. It was thus defective at that time. But this fact is entirely insufficient to justify the inference that it was in that condition before the accident occurred. The fact that gasolene escaped through the pet cock does not justify the conclusion that the mechanism was defective. If a bar of iron breaks under ordinary and proper usage, the fact of the breaking tends to prove that the bar was defective. If the body of this reservoir had broken, it might have been evidence that it was not constructed of proper material. But the fact that gas escaped does not prove that the pet cock was defective. . It merely proves that the valve was open. Its being open did not prove that it was defective.
The order of the trial court is therefore reversed, and a new trial granted.