236 Minn. 123 | Minn. | 1952
Defendants appeal from an order denying their motion for judgment notwithstanding the verdict or for a new trial.
Plaintiff’s action is for damages for the wrongful death of her husband, Earl K. Standafer. Decedent, as an independent contractor in the moving and hauling business, on May 12, 1948, was hired by one of defendants’ tenants to move a bookcase from the sixth floor of the New York Life building in Minneapolis to another
The top of the elevator was of steel construction. It was flat and composed of three sections running horizontally with the front of the elevator. Each section had a reinforcing angle iron around its edge about one inch in height. The same type of angle iron, with one side projecting upward, also extended around the entire outer edge of the top. Fastened to and running' across the middle of the top were two heavy iron beams which carried the elevator and extended above the surface. There were no safety guards or rails around the outer edge, and there were dirt spots and bits of paper on top. There were also cables running up and down the shaft, and the adjoining shaft was empty.
After decedent and his helper completed their inspection, they stepped out from the top of the elevator. Decedent picked up one end of the bookcase, and commenced backing onto the top of the elevator while his helper, who was then facing him, carried the other end. While in this position, the two men could not see each other because the bookcase was between them. Decedent crossed over the center beams and set his end of the bookcase down. The helper, after waiting for a further movement on the part of decedent, called to him but received no answer. The helper then pulled the bookcase out of the elevator shaft only to discover that
A $10,000 verdict was awarded plaintiff. Defendants have appealed from an order denying their motion for judgment notwithstanding the verdict or a new trial.
Although issues have been raised as to negligence, contributory negligence, and assumption of risk, and as to whether decedent was a business guest or a mere licensee, these need not be considered, in that a new trial will be necessary by reason of prejudicial error which occurred when the trial court charged the jury that the violation of a certain city ordinance was prima facie evidence of negligence.
One of decedent’s shoes with its heel torn loose was admitted into evidence on the theory that it provided a basis for an inference that decedent’s heel had caught on the inch-high angle iron around the edge of the elevator, and that as a proximate result thereof he was caused to trip and plunge to his death. Another theory which is at least equally persuasive is that the heel was torn loose by striking some structural object in the course of the fall of decedent’s body to the bottom of the shaft. Circumstantial evidence which justifies not only an inference in support of the verdict but with equal consistency justifies a nonsupporting inference of equal persuasive weight is inadmissible, in that a jury may not base its conclusions upon mere conjecture. Circumstantial evidence is, of course, admissible even though it may justify more than one inference or theory as to the proximate cause of an accident, if the inference or theory in support of the verdict reasonably outweighs and preponderates over other conflicting inferences or theories. Sherman v. Minnesota Mut. L. Ins. Co. 191 Minn. 607, 255 N. W. 113. Clearly, it was error to admit the shoe into evidence. Likewise, speculation as to just when decedent came into contact with the greasy cables with his coveralls and with his hand also does nothing to explain how the accident happened. Although it was error to admit as exhibits the shoe and the coveralls, it is
Only one section of the Minneapolis elevator ordinance was considered in the trial below, namely, § 30.8, which provides:
“No material not a part of the elevator equipment shall be permitted upon the top or cover of any elevator car.”
Plaintiff asserts that a violation of this section establishes negligence. Defendants contend, however, that if the section has any application then decedent personally participated in its violation and is guilty of contributory negligence. The trial court charged the jury that the violation of such ordinance was prima facie evidence of negligence.
It was prejudicial error to permit the jury to predicate negligence on the violation of an ordinance which had no application. The order of the trial court is reversed, and a new trial is granted.
Reversed.
In the absence of statutory provision to the contrary, the violation of an applicable statute or ordinance is negligence per se. Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543.
See, Seward v. Minneapolis St. Ry. Co. 222 Minn. 454, 25 N. W. (2d) 221; Christianson v. C. St. P. M. & O. Ry. Co. 67 Minn. 94, 69 N. W. 640.
As to entire rule generally, see Restatement, Torts, § 286, and comments a to j.
See, Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543; Alsaker v. DeGraff Lbr. Co. 234 Minn. 280, 48 N. W. (2d) 431; Cooper v. Hoeglund, 221 Minn. 446, 22 N. W. (2d) 450, and cases cited therein; Hahn v. Diamond Iron Works, Inc. 221 Minn. 33, 20 N. W. (2d) 704; Crosby v. G. N. Ry. Co. 187 Minn. 263, 245 N. W. 31; 38 Am. Jur., Negligence, §§ 163, 165; Restatement, Torts, § 286; 19 Minn. L. Rev. 667, 673.