41 N.W. 104 (Minn. 1888), Anderson v. Minnesota & Northwestern Railroad Company

Citation:41 N.W. 104, 39 Minn. 523
Opinion Judge:Vanderburgh, J.
Party Name:C. S. Anderson v. Minnesota and Northwestern Railroad Company
Attorney:Lusk & Bunn, for appellant. Geo. B. Edgerton and Davis, Kellogg & Severance, for respondent.
Judge Panel:Vanderburgh, J. Gilfillan, C. J., and Mitchell, J., dissenting. Gilfillan; Mitchell Gilfillan, C. J., and Mitchell, J., (dissenting.)
Case Date:December 21, 1888
Court:Supreme Court of Minnesota
 
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Page 104

41 N.W. 104 (Minn. 1888)

39 Minn. 523

C. S. Anderson

v.

Minnesota and Northwestern Railroad Company

Supreme Court of Minnesota

December 21, 1888

Appeal by defendant from an order of the district court for Dodge county, Buckham, J., presiding, refusing a new trial, after a verdict of $ 1,750 for plaintiff.

Order affirmed.

Lusk & Bunn, for appellant.

Geo. B. Edgerton and Davis, Kellogg & Severance, for respondent.

Vanderburgh, J. Gilfillan, C. J., and Mitchell, J., dissenting.

OPINION

Vanderburgh, J.

A new trial was asked for by defendant on the [39 Minn. 524] ground that the verdict in plaintiff's favor was not justified by the evidence, and the refusal of the trial court to grant the application is the ground of this appeal. The plaintiff was in the employ of the defendant, and was one of a gang of section-men, seven or eight in number, including their foreman. They had charge of a hand-car, which they used in their business to transport themselves and their tools to and from different points on the section of the railroad upon which they worked. At the time of the injury complained of, they were returning on the car from their work, and the men were all engaged in operating it, -- three on one side, and four, including the plaintiff, on the other. The car was moving up grade, and against the wind, and it required vigorous exertion to drive it forward. While so working under the direction of the foreman, that portion of the wooden handle which plaintiff held parted at the iron clasp or ring through which it was passed to work the levers in operating the car, and he was suddenly precipitated forward on the track, and was run over and seriously injured, and he now seeks to recover damages against the defendant for its alleged negligence in not providing a safer instrument to work with.

1. The evidence tends to prove that the handle was too weak for the strain required and put upon it, and the use to which it was applied. There was a knot in the wood at or very near the place where it broke, which caused a deflection in the grain of the wood under the clasp, which some of the witnesses testify was a defect in the handle which weakened it. It was fastened in the clasps or bands at the ends of the iron levers by screws or nails passing through into the wood. This handle, it appears, had been so fastened a second time...

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