93 Minn. 404 | Minn. | 1904
Emil Swanson, while engaged in the service of defendants upon a modern pile driver in placing timbers to construct the foundation of a building in St. Paul, received injuries which caused his death. His administrator brings this action to recover damages, upon the ground that his injuries resulted from the failure of the defendants to furnish suitable instrumentalities for his use. There was a verdict for the plaintiff. A motion by defendants for judgment notwithstanding the verdict or a new trial was denied. From this order defendants appeal.
The piles were about fifty feet in length, and the operation of setting and driving them was nearly as follows: A rope was attached to a drum operated by an engine; it was passed over a pulley at the top of the driver, and thence conducted to the ground, and tied to the end of the pile to be put in position, when, through the operation of
Intestate was required, as he did in this instance, to stand below the follower to guide the pile, and it was' claimed that he should have been protected by the chock from injury from a fall of the follower whose sudden precipitation caused his death. The business was in charge of a foreman named Swanson, whose duty it was to connect the gearing and ropes with the hammer and follower, and then with the engine. The pile driver had been placed in position four days before intestate commenced work, but the chock referred to, which was usually applied to pile drivers, was omitted. It became necessary, in the performance of the work at the time of the accident to place a pile in position. It was unusually long, and was pulled by the engine into place between the leads, so that it struck and loosened the follower, and, while intestate was extending his body beyond the face of the leads, this heavy appliance suddenly fell and struck him to the ground, whereby he received the injuries from which he died.
The cause was submitted to the jury by the trial court upon instructions to the effect that, for any negligence of the engineer who was in
The principal contention at the trial was upon the facts, it being claimed for defendants that the use of the chock as a means of protection, while it was shown to be usual and useful to prevent accidents, was not practical; that the adjustments of ropes and knots made it impossible to use it with utility and benefit; but an examination of the entire evidence satisfies us that this was a question of fact and properly submitted to the jury, hence the court was not authorized to order judgment for defendants. Having reached this 'conclusion, it follows that whether the negligence of the fellow servants, either in the operation of the engine or the adjustment of the ropes to the pile or the hoisting of the same, solely occasioned the accident, was also a question of fact; and if the omissions of the fellow servants did contribute thereto and combined with the negligence of the master in not providing the means of protection afforded by the chock, such omissions of the master in this respect constituted actionable negligence, upon which ground the verdict must be sustained. Franklin v. Winona & St. P. R. Co., 37 Minn. 409, 34 N. W. 898; Delude v. St. Paul City Ry. Co., 55 Minn. 63, 56 N. W. 461; Johnson v. Northwestern Tel. Exch., 48 Minn. 433, 51 N. W. 225; King v. Chicago, M. & St. P. Ry. Co., 77 Minn. 104, 79 N. W. 611; Thomas v. Smith, 90 Minn. 379, 97 N. W. 141.
It seems quite clear upon the special findings of the jury, which are reasonably supported by the evidence, that it was a fair question of fact whether the master had performed his duty in furnishing a substantial appliance shown to be in ordinary use to prevent the fall of the hammer which occasioned the unfortunate accident in this case. The application of the ropes, and their adjustment to the hammer and follower with which they were connected, was a duty assumed
The recovery in this case was for $2,700, which was reduced by the trial court to $2,000, and it is claimed that this verdict is excessive. Testimony tended to show that intestate had no family, but that his mother, residing in Sweden, depended upon his efforts to some extent for her support. He was a young man, twenty-six years of age, in good health, apparently competent and faithful in the performance of his duties, and there is no reasonable ground for objection to the amount of the recovery.
The order denying a new trial is affirmed.