37 Minn. 310 | Minn. | 1887
This case has only required a careful consideration of the evidence for the purpose of determining whether it justified a verdict in favor of the plaintiff. More particularly, the appeal presents the double question as to whether the case justified the conclusion that the defendant was chargeable with neglect of duty towards its employe, the plaintiff, by reason of the dangerous condition of a pile-driver,in connection with which he was at work, and whether the case warranted the further conclusion that the plaintiff was not. chargeable with contributory negligence, or with having himself assumed the risks resulting from the defects shown in respect to the machinery. The evidence tended to show a state of facts of which
The plaintiff was stationed at one side of the pile-driver, with an iron bar, to assist in holding the structure from being drawn backward on the ice by the engine when the hammer was being raised. The apparatus being put in operation on the afternoon of February 3d, it was then discovered that, by reason of defects in the structure and adjustment of the parts, the wire rope was liable, when slack, to get out of its place under the drum, so as to require that it be put back in place. The foreman directed the laborers, including the plaintiff, to watch this, and to put it back when it came out of place. There would have been no great difficulty in overcoming this defect, and by temporary appliances it was partially, but not wholly, remedied in the forenoon of the next day.
The evidence also tends to show that before the accident occurred some of the wires composing the rope had become broken or ragged, from cutting across the flanges of the drum, owing to the too great motion of the latter upon the swivel, and also from the power having been applied when the rope was off the drum.
In the afternoon of the second day of the work the engineer had stopped the engine to attend to some duties in connection with it.
In the ordinary operation of the apparatus while driving a pile, the engineer would raise the hammer, let it drop upon the pile, immediately release the cable, which the weight of the nippers would cause to run out until the nippers had clasped the hammer again, when it would be immediately hoisted, and so on. The cable might thus come out of its position under the drum immediately after the hammer had been grasped, and just as the line was being drawn in to raise the hammer. It seems obvious that to operate the apparatus in this way, in view of the liability of the line to run off the drum, and with the expectation that the employes would put the line in place without stopping the machinery, might be deemed dangerous.
Again, it is to be observed that, as the evidence goes to show, owing to the defects in the apparatus, the wire rope which the employes were thus called upon to handle had become broken or ragged. Although this was not alleged in the complaint as a cause of action, the fact was litigated, and without object-ion this fact was allowed to be shown as a cause of the injury, although it was denied on the part of the defendant. This might be deemed to involve danger to employes necessarily wearing mittens, and it appears that the weather was very cold and frosty.
We see, therefore, no reason to declare the verdict unsustained, so far as it involves the determination that the defendant was not re-gardful of its duty towards its servants to exercise care to supply reasonably safe apparatus for their use. This duty is not limited to furnishing safe appliances in the first instance, but it extends also to their subsequent condition while in use. Gates v. Southern Minn. Ry. Co., 28 Minn. 110, (9 N. W. Rep. 579.) In view of the defective operation of the apparatus on the first day of its use, it was a fair question for the jury as to whether the master, through the foreman in charge of the work, ought not to have discovered that the wire rope
While the defects referred to were being partially remedied in the .forenoon of the second day, the plaintiff was employed at other work about the engiue-house.
As affecting the question of the plaintiff’s negligence, it should further be considered that the machinery was wholly at rest, and had been for such a length of time as might be deemed to justify the expectation that it would not be started again without a signal from the foreman, whose duty it was to direct the operations, or unless the engineer from his place saw that he could safely set the machinery in motion again. If the plaintiff had seized the line while the machinery was in operation, in the manner we have indicated, the ■case would have been very different. Of course, the plaintiff is not to be deemed to have voluntarily assumed the risk incident to handling the stranded wire rope, if he did not know of its defects, and was not so employed that he ought to have made investigation, and it does not appear that such was the case.
The statement of the plaintiff, when he was employed, that he was •accustomed to such work, excused the defendant from explaining to plaintiff the dangers ordinarily incident to such operations; but it did not qualify the obligation of the master in respect to furnishing reasonably safe appliances, nor excuse the master from liability for a neglect of that duty.
Order affirmed.
Berry, J., because of illness, took no part in this case.
