111 Minn. 105 | Minn. | 1910
Defendant was engaged in operating a grain elevator in the city of Minneapolis. Plaintiff’s intestate was in its employ as a laborer, and was killed while in the discharge of his duties hy coming in contact 'with an uncovered dangerous machine, and this action was prosecuted by his personal representative in behalf of the next of kin. A verdict was returned for plaintiff, and defendant appealed from an order denying its alternative motion for judgment notwithstanding the verdict or a new trial.
The short facts are that on the second floor of defendant’s elevator, in which decedent was at the time of his death engaged at work, defendant operates two electric motors, designated in the record as motor No. 1 and No. 2, supplied with electricity from outside the building. Attached to motor No. 2, and a part of its running gear, are two sets of cogwheels, one twenty-four and the other six inches in diameter. A shaft attached to these wheels makes nine hundred revolutions a minute, and the -wheels when uncovered were a source of extreme danger to any workman coming in contact with them. A cover had been provided for the same but was not attached at the time of the accident. The motor became out of order, and on November 5, 1908, was taken out for repairs, and was returned and installed in the proper place on the nineteenth of the same month. For some reason it did not work properly on its return, and the’ cover to the cogwheels was not replaced; the reason for this action being to enable the employees to learn the nature of the defect preventing its proper operation. The cover remained off until the day of decedent’s death, a period of about nine days. Decedent, while attempting to oil some of the bearings of the motor, was caught in the cogwheels and almost instantly killed.
1. It appearing to have been practicable, it was the duty of defend
2. The principal contentioai on the facts is that decedent assumed the risks of working about the uncovered motor, and therefore plaintiff caaiaiot recover. Our conclusion upon this branch of the case is that the qiaostion was properly submitted to the jury.
Dceedeait had been in the employ of defendant for two or three months, during which time he had been engaged in different kinds of work, amoaig other things being charged with the duty of oiling the machinery whenever directed to do so, or whenever in his judgment it was necessary or proper. He was, however, a common laborer, aiot a aaiechaaiie, and aiot shown to have been familiar with the constaniction and operation of the motors used in this elevator. Another servant, one Noreen, had charge of this particular motor, and the evidence tends to show that he attended to the matter of oiling its various parts during all the time it reiaiained uncovered up to the day decedeaat aaaet- his death. On the anorning of that day decedent was set to work on the floor upon which this motor was located, and withiai one-lialf hour thereafter was killed in attempting to oil the machine. Though he was a man of mature years, and had
We are bound to presume, in the absence of evidence to the contrary, since he is dead and not here to speak for himself, that he; exercised due care for his own protection. The evidence is ample: that he was caught in the machine and there killed. Hawkins v. Great Northern Ry. Co., 107 Minn. 215, 119 N. W. 1070, 1135; Seely v. Tennant, 104 Minn. 354, 116 N. W. 648. The evidence is not so conclusive that he had a general knowledge of and familiarity with the dangers incident to the uncovered motor as to justify the conclusion, as a matter of law, that he assumed the risks of his employment. Christianson v. Northwestern Compo-Board Co., 83 Minn. 25, 85 N. W. 826, 85 Am. St. 110; Rase v. Minneapolis, St. P., & S. Ste. Marie Ry. Co., 107 Minn. 260, 120 N. W. 360, 21 L.R.A.(N.S.) 138. Nor can-it-be said, as a matter of law, that: he was guilty of contributory negligence. • Defendant is not, therefore, entitled to judgment notwithstanding the verdict; and, as-the-, court below by its order denying a new trial has determined that, the jury fully and fairly considered the evidence, we discover no-reason for ordering a reversal or granting a new trial.
3. Defendant called as a witness-one of its stockholders, J. CIicnsey, superintendent in charge of the elevator, and elicited from him the fact that some time prior to the-accident he had a conversation with decedent in reference to the motor and the uncovered cogwheels, and he was asked the question, “What was the conversation?” Upon the fact appearing that the witness was a stockholder-in defendant corporation, the court sustained plaintiff’s objection-to the question, based upon section 1663, B. L. 1905, which prohibits, the giving in evidence by a part}7 or person interested in an action.
The fact that the witness was a stockholder in the corporation was not disputed, and the question presented is whether he came within the provisions of the statute respecting the admissions of evidence of conversations with a deceased person. The question does not require extended discussion. That the witness was an interested party, within the meaning of the statute, cannot be seriously questioned. He was a stockholder and pecuniarily interested in the result of the action — a direct, and not a remote or speculative, inter■est.
The case of Perine v. Grand Lodge, 48 Minn. 82, 50 N. W. 1022, is not in point. The defendant in that case was a mutual benefit association, and the person called as a witness for the purpose of giving a conversation with a deceased membei’, upon whose certificate of membership the action was founded, was not a member of the association at the time the conversation took place, and, though he was such when called as a witness, he did not become a member until after the death of the certificate holder, and not until the rights of the parties thereunder had become fully vested. His interest in the result of that action was extremely remote, and not such as to come within the meaning of the statute.
We need not stop to inquire whether in an action of this kind a stockholder of a corporation, who is also its superintendent and manager, may be heard to testify to the fact that in his capacity
4. Defendant also contends that the damages awarded, $5,000r are excessive, and that for that reason a new trial should he granted. In-this we do not concur. Decedent was an industrious man, with a -wife and several children, a number of whom were minors, and had a natural expectancy of life for about nineteen years, and was earning a competency of $2.25 per day. The trial court has approved the amount, and we do not feel justified in interfering with the conclusion there reached. Bolinger v. St. Paul & D. R. Co., 36 Minn. 418, 31 N. W. 856, 1 Am. St. 680; Johnson v. C. A. Smith Lumber Co., 99 Minn. 343, 109 N. W. 810.
We have fully considered all other assignments of error, and discover no reason for reversing the order of the court below.
Order affirmed.