107 Minn. 554 | Minn. | 1908
Plaintiff and respondent, a man forty years of age, who had been ten years in the employ of the defendant and appellant, and for the last eighteen months of which he had worked in the “steel shop” here involved, was injured while using an air hoist. There were some fifteen of these hoists in the shop. On this hoist alone the position of the arms was reversed, so that the chains to raise and lower the load were in a position opposite to that which they occupied on the other hoists. The chain to raise the load on this hoist was where the chain to lower the load on the other hoists was placed. This hoist had long been in service in another part of the shop, but whether respondent had ever worked with it was not shown. During the illness of plaintiff, from which he had just returned to work the morning of the day on which the injury occurred, it had been installed in the other part of the shop, where the plaintiff went to work.
The jury returned a verdict of $5,000. This appeal was taken from an order of the trial court denying defendant’s motion for a new trial.
1. As to the defendant’s negligence, the questions argued pertain to the sufficiency of plaintiff’s proof to bear the burden of showing defendant’s negligence in each of four different particulars and on the propriety of the charge of the court with respect thereto. It will conduce to brevity to consider these questions together. The allegations of negligence, according to defendant’s brief, were that “the hoist (1) was reversed; (2) very quick-acting, of much greater speed than the others; (3) would not stop its motion when the appropriate chain was released, but had-to be controlled by using the opposite chain; and (4) was also so defectively constructed and maintained that it would not hold its load.” It is conceded that as to the first allegation there was sufficient evidence, and that as to the third allegation there was “some evidence,” to sustain the complaint. An examination of the record has satisfied us that such evidence was sufficient, within the familiar rule on that subject.
Defendant’s essential argument is that the second and fourth claims of negligence have not been established. With respect to the second, there was direct testimony that the machine was very quick-acting and of much greater speed than the others. One witness testified:
With respect to the fourth charge of negligence, the defendant insists that the court erred in charging the jury that the complaint in said action contained, inter alia, an allegation that “the hoist would not hold its load.” This assignment is not well taken. The complaint expressly alleges, inter alia, that “said hoist was also so defectively constructed and maintained that it would not hold its load.” There was, therefore, no variance between the complaint as the court-read it to the jury and the complaint as it actually was. The court did not, however, submit to the jury that precise issue. The whole charge in that connection was as follows: “The question as to the rapidity with which it [the hoist] moves, whether it is faster than the others; the question as to whether it was defective; the question whether * * * it necessitated the pulling of the opposite chain in order to stop after having been put in motion one way or the oth
Objection was also made to that part of the court’s charge: “There is a duty resting upon the employer to furnish a reasonably safe place in which to work.” In Poczerwinski v. C. A. Smith Lumber Co., 105 Minn. 305, 117 N. W. 486, a charge similar to the one here in issue was held upon that record not to have constituted reversible error. The correctness of that ruling is so earnestly challenged here that, while we think it is obviously correct, we are constrained to state its rationale somewhat at length. It is elementary that this language, taken by itself, is not a strictly accurate statement of the general rule of law. Its fault is that the liability is rested on the actual condition of the place, irrespective of what care has been exercised, instead of being based on the degree of care observed by the master. None the less, the court’s charge, taken as a whole, fully submitted the negligence of the defendant as the issue to be tried, and expressly negatived the idea that the master was, in its own language “required to furnish the safest and best instrumentalities,” or that “the master was an insurer.”
Defendant lays great stress upon the decision in Armour & Co. v. Russell, 144 Fed. 614, 75 C. C. A. 416, 6 L. R. A. (N. S.) 602, in which it was held that the charge of the court, which stated the true rule on the subject, but also contained the error immediately complained of, entitled to a new trial on the legal presumption that error produces prejudice, and that it is only when the facts appear so clearly as to be beyond doubt that the error did not prejudice, and could not have prejudiced, that the rule that error without prejudice is no ground for reversal is applicable. That authority does not control here, for two reasons: In the first place, the rule as to presumption
The question, then, resolves itself into whether this present instruction falls within this rule. The formula of the trial court was a few years ago in general — indeed, almost universal — use. Thus in Northern Pac. R. Co. v. Peterson, 162 U. S. 346, 353, 16 Sup. Ct. 843, 40 L. Ed. 994, Mr. Justice Peckham said: “There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasonably safe and competent men to perform their respective duties,” etc. In Northern Pacific R. Co. v. Babcock, 154 U. S. 190, 200, 14 Sup. Ct. 982, 38 L. Ed. 958, Mr. Justice White said: “The obligation of the employer to furnish to his employee sound implements is established.” The same terminology was also employed in Kinnear Mnfg. Co. v. Carlisle, 152 Fed. 933, 82 C. C. A. 81; National v. Carlson, 155 Ill. 210, 40 N. E. 492; Lewis v. Seifert, 116 Pa. St. 628, 647, 11 Atl. 514, 2 Am. St. 631; Schminkey v. Sinclair, 137 Iowa, 130, 114 N. W. 612; Roach v. Haile, 71 S. C. 79, 50 S. E. 543, 544; Marks v. Harriet, 138 N. C. 401, 50 S. E. 769, 3 Am. & Eng. An. Cas. 812; and in uncounted scores of other cases. The language which, as thus ap
2. The questions as to plaintiff’s contributory negligence were, we think, properly submitted to the jury. The change in the situation with which the employee had been familiar was a proper consideration in determining both contributory negligence and assumption of risk. See Huizega v. Cutler , 51 Mich. 272, 16 N. W. 643; White v. Nonantum, 144 Mass. 276, 11 N. E. 75; Barbo v. Bassett, 35 Minn. 485, 29 N. W. 198; Craver v. Christian, 36 Minn. 413, 31 N. W. 457, 1 Am. St. 675. This conclusion is -not altered by the fact that at the end of the chains were cast-iron labels or handles on which were raised words, showing which handle was to raise and which to lower the load. The words “lower” and “hoist,” plaintiff says, he did not see, because the lowering chain was out of sight on top of the load, which at that time was about four feet above the ground. Moreover, the obscuring of the light by smoke, the distance the plaintiff was from the labels or handles, and the angle at which they were suspended, directly affected the notice they were intended to convey. Nor was plaintiff necessarily, as a matter of law, negligent in using the rod grabs previously described, rather than one of the other devices supplied by the defendant for that purpose, viz., certain chain grabs, which consisted of chains, at one end of which were flat pieces of steel between two and three inches broad, with a hook from three to four inches long, and also chains ending with a ring, so the load could be held tight'by a slip-knot arrangement. The proximate cause of the injury was the unexpected and violent contact caused by the striking of the piston against the end of the cylinder. The failure of the hoist to stop automatically was the proximate cause. In this view, it is unnecessary to enumerate other and sufficient reasons for holding the plaintiff not necessarily negligent in the use of the rod grab.
Affirmed.
On April 16, 1909, the following opinion was filed:
The application for reargument by appellant herein is hereby denied.