108 Minn. 481 | Minn. | 1909
The plaintiff herein, who was forty-eight years old, and a carpenter earning $3.40 per day prior to his injury, was, on November 8, 1907, in the employ of the defendants, who were then engaged as builders and contractors in the construction of the Catholic Procathedral in the city of Minneapolis. The work assigned to him was the making and repairing of wooden forms to be used in placing the concrete. Near by, the defendants had erected and were operating a wooden derrick for the hoisting and placing of concrete material by means of a bucket, having a capacity of a cubic yard of concrete, hung from the hoom of the derrick and carried by it, when loaded, to the point where the concrete was to be used. On the day named the plaintiff was engaged in putting some braces between the forms into which concrete was to be poured. The bucket, with concrete in it, was being swung by the boom, when the derrick broke and fell, the boom striking some planks, which knocked the plaintiff down, whereby he was seriously injured.
This action was brought by the plaintiff in the district court of the county of Hennepin to recover damages for the injuries so sustained, on the alleged ground that they were caused by the defendants’ negligence. The negligence alleged in the complaint was to the effect that the woodwork of the derrick, especially the left leg or brace thereof, was rotten, out of repair, and of insufficient strength, which caused the derrick to fall, whereby the plaintiff was injured. The answer denied that plaintiff’s injuries were caused by any negligence on the part of the defendants. The issue was submitted to the jury, and a verdict returned for the plaintiff for $4,000. Defendants appealed from an order denying their alternative motion for judgment or a new trial.
The record presents for our consideration only the question whether the evidence sustains the verdict. The rule res ipsa loquitur does not apply to this case, and the burden was upon the plaintiff to establish the alleged negligence of the defendants and that it was the proximate cause of his injury. The evidence is amply sufficient to establish the fact that 'the derrick was rotten and of insufficient strength; that the defendants might have ascertained its condition by the exercise of due care; and, further, that they were negligent in using it in its defective condition.
The trial judge, in denying the motion for a new trial, approved this finding as sustained by the evidence; but counsel for defendants claim in their brief that it appears without dispute that at the time of the accident the bucket was loaded to its full capacity, and refer us, in support of the claim, to folios 51, 173, 564, 572, and 1053 of the record. The first and fourth relate to the testimony of August Gustafson, which is as follows:
“Q. Do you know how much it would carry — how much concrete ? Was it a large or small bucket ? A. It was large. Q. A large bucket ? A. Yes; yes, sir. Q. At the time when the derrick broke and fell, was there a loaded bucket on the arm ? A. Yes. * * * Q. You noticed the bucket coming around? I say, you noticed the bucket coming around ? A. No; I didn’t look at it all the time. Q. I don’t mean all the time. You saw the bucket stopped ? A. Yes. Q. And you told Mr. Gjertsen that the bucket was full of concrete ? A. No; I haven’t said anything about that. Q. I understood you to say that it was full of concrete. Mr. Gjertsen: Olson said it was full. Mr. Brown: Well, was it Olson ? I thought he was the man. Mr. Olson testified that it was full of concrete ? Mr. Gjertsen: They all said it was loaded. Mr. Brown: But Olson said it was full. Mr. Gjertsen: Yes. Mr. Brown: All right. That is all.”
The second and third relate to the testimony of John Olson, which was this: * * Q. Now, counsel asked you in regard to the weight of these two arms when the derrick was in operation. This
The last reference has no relation to the condition of the bucket when the derrick fell, but to the order given by one of defendants to their foreman to the effect that the bucket should be only half filled with concrete. This is all the evidence upon which the claim is made that it conclusively appears that the bucket was loaded tc its full capacity. The fair import of Gustafson’s testimony is that the bucket was loaded at the time of the accident — that is, it was not empty— and of Olson that the bucket was loaded, whether it was full at the time he could not say, but as a general rule, when he observed it, the bucket was always full. It is quite apparent that counsel for plaintiff had reference to this testimony when he admitted that “Olson said it was.” It is obvious that the finding of the jury that the fall of the derrick was not caused by overloading the bucket is not contrary to the undisputed evidence- It was a fair question for the jury upon the evidence.
The verdict, then, eliminates the overloading of the bucket as a cause of the fall of the derrick, leaving only the question whether the finding of the jury that it was caused by its rotten condition and insufficient strength is supported by the evidence. The claim of the defendants is that, if the overloading the bucket be eliminated, the cause of the fall of the derrick is left by the evidence a mere matter of conjecture and speculation. If this be true, the verdict must be set aside. We have accordingly attentively considered the record with reference to this claim, and have reached the conclusion that this finding of the jury is also sustained by the evidence.
The last'contention of the defendants is that the damages are so excessive as to indicate that they were given under the influence'of passion or prejudice. The evidence on the part of the plaintiff tends to
We are of the opinion that the award of damages is not excessive, and that it is fairly sustained by the evidence, taking, as we must, the most favorable view of it for the plaintiff.
Order affirmed.